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PUBLICATIONS    OF 

JOHiM    BYRNE  &  CO. 


Law  Latin.     A  Treatise  on  Latin.      By  Prof.   E.  Hilton 

Jackson.    Law  sheep.        ....         .  $2.00 

Legal  Maxims.     By  John  A.  Cotterall.     Cloth.        -  .75 

Examination  Compend.    900  Questions  with  Answers.  LOO 

Legal  Classic  Series 

Glanville.     -       -       By  Beames  &  Beale.      -       -  3.00 

Britton.        .        -        By  Hon.  S.  E.  Baldwin.         -  3.00 

Littleton's  Tenures.    By  Prof.  E.  Wanibaugh.  3.00 

Mirrour  of  Justices.     By  Prof.  W.  H.  Robinson.     -  3.00 


A 

SELECTION  OF  ,CASES 


ILLUSTRATING 


EQUITY  PLEADING  AND 
PRACTICE 


WITH 


DEFINITIONS    AND  KULES  OF  THE    UNITED    STATES 
SUPREME  COURT  RELATING  THERETO 


BY 

E.  RICHARD  SHIPP,  L.L.M. 

AND 

JOHN  B.  DAISH,  A.  B.,  L.L.M. , 

Of  the  Dii^h'ict  of  Columbia  Bar. 


WASHINGTON,  D.  C.  : 
JOHN  BYRNE  &  CO 
1901. 


^       ft  r^i 


Copyright  by 
E.  EICHARD   SHIPP. 

1901. 


n- 


0 


^ 


TO 

CHARLES  CLEAVES  COLE, 

ASSOCIATE  JUSTICE  OF  THE  SUPREME  COURT  OF  THE 

DISTRICT  OF  COLUMBIA, 

IN  RECOGNITION  OF  II IS  LEARNING  ' 

AND 

IN  APrRECIATION  OF  HIS  STERLING  PERSONAL  QUALITIES 

THIS  VOLUME 

BEGUN  AT  HIS  SUGGESTION 

sv>  AND 

persevered  in  under  his  encouragement 

is  affectionately  inscribed  by 

The  Authors. 


CONTENTS. 


INTRODUCTIOX. 

Equity  Pleading — Jurisdictional  rules 1 

C  IT  AFTER  I. 
Jurisdiction  of  Equity  Courts— Miscellaneous  rules 4 

CHAPTER  II. 

The  Bill,  its  form  and  requisites    55 

CHAPTER  III. 
Of  the  Parties 77 

CHAPTER  IV. 
Process — Issuance — Service  lOG 

CHAPTER  y. 

Default  and  Decree  pro  confesso 133 

CIIAPTEIi  VI. 
Appearance  and  proceedings  on  behalf  of  defendant 140 

CHAPTER  VII. 
Further  proceedings  on  part  of  complainant 176 

CHAPTER  VIII. 
Hearing  on  bill  and  answer— Taking  testimony  on  issue  joined— 
Reference  to  Master  and  proceedings  thereon — Witnesses  -nn 

CHAPTER  IX. 

Amendments— Supplemental  and  Rcviviil  liills   273 

CHAPTER    X. 

Preparation  for  liearing — Submission  of  cause— Decree 2sy 

(  vii  ) 


YlU  CONTENTS. 

PAGE 

CHAPTER  XL 

Prelim inary  in j unctions  and  restrain] ng  orders   297 

CHAPTER   XII. 
Cross  Bills 334 

CHAPTER  XIII. 

Eehearings  and  Bills  of  Review 347 

CHAPTER  XIV. 
Appeals 361 

CHAPTER  XV. 

Enforcement  of  Process  and  Decree— Auxiliary  Proceedings — Gen- 
eral Rules 370 


Appendix— Ordinances  of  Lord  Bacon 377 

Index  of  Equity  Rules    399 


TABLE  OF  CASES. 


PAGE. 

Allis  V.  Sto\vell  L'dO 

Atwill  I'.  Feirett  Kll 

Bailey  r.  AV right   IC!) 

Boxulereau  v.  Montgouieiy lil  I 

Brandon  Mfg.  Co.  v.  Prime  IGl 

Bronson  v.  Railroad oo4 

Brooks  t".  Byani iso 

Brown  i\  Pacific  Mail  S.  S.  Co '. .'IIG 

Caster  u.  Wood  ilSl 

Chappedelaine  v.  Dechenaux  249 

Clements  »;.  Moore    .">'  2 

Cole  8.  M.  Co.  V.  Virginia  G.  II.  W.  Co 3ii.5 

Des  Moines  &  M.  Ey.  v.  Alley WJ 

Dexter  v.  Arnold  {2  Snnmer,  108,  132)  229 

Dexter  t'.  Arnold,  (-5  Mason,  303,  329) 317 

Elmendorf  v.  Taylor i)(5 

Eslava  v.  Mazange  217 

Ewing  1-.  Blight : 297 

Finley  i-.  Bank,  U.  S (58 

Fitch  V.  Creigliton  42 

Fitzpatrick  et  aL  v.  Domingo   2S1 

Forgay  v.  Conrad  290 

Gaines  v.  Xew  Orleans  2-JG 

Gass  r.  Stinson   212 

Grant  Powder  Co.  v.  Cal.  Yig.  P.  Co 283 

Gracie  v.  Palmer 124 

Gray  v.  Larrimore 98 

Graham,  ex  parte  ; 118 

Harrison  v.  Nixon o9 

Hayes  r.  Dayton  I'lG 

Ingle  v.  Jones ]()4 

Jackson  v.  Ashton  (8  Pet.  148) 72 

Jackson  v.  Ashton  (10  Pet.  48(i)  280 

J<'nes  V.  Andrews G3 

Kelsey  r.  Hobby  220 

Langdon  v.  Goddard  14(1 

(  ix  ) 


X  TABLE    OF    CASES. 

PAGE 

Lewis  I'.  Sluiinwald  16 

Livingston  v.  Stoiy  148 

Longworth   v.   Taylor 278 

Lowenstiiie  v.  Glidewell 130 

McCauley  v.  Kellogg 298 

McMicken  V.  Periii 255 

MmisIi  v.  Bennett 804 

Marye  v.  Strouse 134 

Melius  V.  Thompson 192 

Morgan  v.  Morgan 94 

Myers  v.  Dorr 185 

Nat.  Bank  c.  Ins.  Co 191 

O'Hara  u.  MacConnell 134 

Parkhurst   v.  Kinsman  275 

Parsons  i-.  Howard  125 

Payne  v.  Hook 50 

Peay  v.  Sclienk  344 

Phoenix  Mut.  Ins.  Co.  v.  Wulf  121 

Pierce  &  McDonald.^.  West's  Ex 279 

Poor  V.  Carlton  307 

Poultney  v.  City  of  Lafayette 361 

Railroad  Co.  v.  Swasey 294 

lloemer  v.  Simon  360 

Scott  w.  Ilore  357 

Story  V.  Livingston  233 

Tobin  I'.  Walkinshaw 78 

Toland  v.  Spiague 107 

United  States  u.  Gillespie  46 

United  States  v.  Parrott 28 

Van  Reinisdyk  v.  Kane 171 

Vose  V.  Bronson 70 

Ward  V.  Arredondo 365 

Wilson  V.  Graham 72 

Wood  V.  Mann 257 


EQUITY  PLEADING. 


The  pleadings  in  equity  are  the  written  statements  of  tlie 
parties,  setting  out  in  conformity  with  certain  established 
rules,  the  matters  and  facts  relied  upon  by  the  respective 
parties  to  the  suit,  in  order  to  maintain  or  defeat  it,  or  to 
obtain  or  prevent  the  equitable  interposition  of  the  Court  con- 
cerning the  relief  sought  (Story). 

A  suit  in  Equity  is  instituted  by  a  bill,  sometimes  called  a 
petition  ;  this  is  a  statement  of  the  grounds  on   which   the 
complainant  bases  his  right  to  equitable  relief.* 
Bills  are  divided  into  : 

I.   Bills  Original,  including  all  those  in  which  the  .same 
persons,  having  the  same  interests  are  first  before  the 
Court  for  determination  of  rights.     Bills  Original  are  : 
(a)  Those  praying  relief,  i.  c,  seeking  for  the  adjudica- 
tion upon  the  merits  of  the  identical  suit  before 
the  Court  to  ascertain  present  existing  rights  and 
remedy  present  wa'ongs.     Technically  bills  for  re- 
lief must  ask  for  a  decree  of  Court.     Bills  praying 
relief  may  be 

1.  For  specific  performance,  /.  e.,  for  the  execution 
of  a  contract. 

2.  For  Partition,  i.  c,  for  the  severance  of  joint 
estates. 

3.  Bill  of  Peace,  ?'.  c,  for  tlie  perpetuation  of  the  gen- 
eral exclusive  right  in  the  complainant  against 
numerous  parties  who  dispute  it  or  where  the- 
right  is  claimed  by  numerous  complainants 
against  the  defendant. 

(1) 


EQUITY    PLEADING. 

4.  Bill  Quia  Timet,  i.  e.,  for  relief  against  appre- 
hended inconvenience,  danger  or  injury. 

5.  Bill  for  Foreclosure,  i.  e.,  to  compel  the  sale  of 
mortgaged  premises  and  bar  the  right  of  re- 
demption. 

6.  Bill  to  Redeem,  ?*.  e.,  to  compel  the  mortgagee 
to  accept  payment  and  reconvey. 

7.  Bill  for  Injunction,  i.  e.,  to  restrain  the  defend- 
ant from  committing  an  irreparable  injury  or 
to  compel  the  performance  of  some  act. 

(Each  of  the  above  bills  prays  a  decree  of  the  Court  touching 
some  right  claimed  by  the  complainant  in  opposition  to  the 
defendant. ) 

8.  Bill  of  Interpleader,  i.  e.,  to  determine  in  whom 
is  the  right  of  possession  of  personal  property. 

9.  Certiorari  Bill,  /.  e.,  to  remove  a  cause  from  a 
lower  to  a  higher  Court.     (Seldom  used.) 

(b)  Those  not  praying  relief,  i.  e.,  to  prevent  future 
apprehended  injury  or  affecting  suits  in  the  courts 
of  law.  (The  distinctions  between  these  and  bills 
praying  relief  is  not  a  mere  matter  of  form,  but 
goes  to  the  life  of  the  bill.)  Bills  not  praying  re- 
lief are  : 

1.  Bill  to  Perpetuate  Testimony,  i.  e.,  to  preserve 
evidence  which  is  in  danger  of  being  lost  be- 
fore the  question  now  before  the  Court  can  be 
determined. 

2.  Bill  De  Bene  Esse,  i.  c,  to  preserve  evidence 
which  is  in  danger  of  being  lost  before  the 
controversy  is  made  the  subject  of  an  action. 

3.  Bill  for  Discovery,  i.  e.,  to  compel  disclosure  of 
facts  of  which  the  defendant  has  knowledge, 
information  or  belief  or  documents  in  the  pos- 
session or  control  of  the  defendant. 

II.  Bill  not  Original,  including  those  in  addition  to  or  a 
continuance  of,  an  original  bill,  or  both,  and  relate  to 


EQUITY    I'LEADING.  3 

some  matter  already  in  controversy  between   the  same 
parties  or  their  privies.     Bills^not  Original  are  : 

1.  Supplemental  l)ill,  i.  c,  for  matter  arising  sub- 
sequently to  the  commencement  of  the  suit ; 
the  matter  may  give  a  new  interest  to  a  person 
not  a  party  to  the  bill,  or  occasion  a  change  of 
the  interest,  or  the  matter  may  entitle  the  com- 
plainant to  more  extensive  relief  than  prayed 
for. 

2.  Bill  of  Revivor,  ?'.  c,  in  continuance  of  an  orig- 
inal bill,  when  the  suit  would  otherwise  abate 
by  reason  of  the  death  of  one  of  the  parties  or 
by  the  marriage  of  a  female  complainant. 

3.  Bill  of  Revivor  and  Supplement,  ?'.  e.,  to  revive 
the  original  suit  and  also  to  supply  defects  or 
set  up  new  facts  which  have  arisen  subsequent 
to  the  filing  of  the  original  bill. 

III.  Other  Bills,  those  which  are  technically  in  the  nature 
of  original  bills  not  praying  relief  and  which  cannot 
be  classified  as  original  bills  and  bills  not  original. 
Other  Bills  are  : 

1.  Cross  Bill,  i.  e.,  to  secure  to  the  defendant  cross 
relief  from  the  plaintiff  or  other  parties  to  the 
suit. 

2.  Bill  of  Review,  i.  e.,  to  correct  errors  apparent 
on  the  face  of  the  decree  ;  also  where  new  mat- 
ter has  come  to  the  knowledge  of  one  of  the 
parties  after  publication  passed  ;  this  by  leave 
of  Court  and  only  by  parties  to  the  record  or 
their  privies. 

3.  Bill  in  the  Nature  of  Bills  of  Review,  i.  e.,  to 
correct  errors  apparent  on  the  face  of  the  decree 
after  it  has  been  signed  and  enrolled  ;  this  bill 
is  brought  by  a  person  not  bound  by  the  decree. 

4.  Bill  to   Impeach  a  Decree  on  the  Ground    of 


EQUITY    PLEADING. 

Fraud,  /.  c,  to  set  aside  a  decree  of  the  Court 
wliich  has  been  rendered  under  a  fraud  or 
imposition. 

5.  Bill  to  Avoid  or  Suspend  the  Execution  of  a 
Decree,  i.  e.,  to  stay  the  execution  of  a  decree 
either  ternporaril}^  or  permanently. 

(*).  Bill  to  Carry  a  Decree  into  Execution,  i.  e.,  to 
revive  a  dormant  decree  or  add  new  parties 
after  decree  signed  and  enrolled,  where  the 
new  parties  have  interests  similar  to  the  liti- 
gants, or  are  in  privity  with  them. 

7.  Bill  in  the  Nature  of  a  Bill  of  Revivor,  i.  e.,  in 
continuance  of  an  original  bill  where  the  suit 
has  abated  by  the  death  of  a  party  or  for  any 
other  reason,  and  where  the  change  of  interest 
has  taken  place  by  the  act  of  the  parties. 

8.  Bill  in  the  Nature  of  a  Supplemental  Bill,  i.  e., 
where  the  interest  of  a  party  wholly  determines 
and  the  propert}^  becomes  vested  in  another 
not  claiming  through  him. 


The  Parts  of  a  bill  are  : 

1.  The  Address,  containing  the  title  and  style  of  the  Court. 

2.  The  Introductory  part,  containing  the  names,  places  of 
abode,  and  citizenship  of  the  parties,  and  the  right  in 
which  they  sue  and  are  sued. 

(In  present  practice  the  address  and  introductory  parts  are  considered  as 
one. ) 

3.  The  Premises,  or  stating  2:)art,  containing  the  complain- 
ant's case. 

4.  The  Confederating  Part,  containing  a  statement  of  con- 
spiracy between  the  parties  defendant  and  others  un- 
known.    (This  clause  is  not  generally  used.) 

5.  The  Charging  Part,  containing  the  pretenses  which  the 
complainant  supposes  the  defendant  will  set  up  for  ex- 


IXil  ITY    IM.KAniNC.  0 

cuse  or  jiistiiicalion  and   then  cliai'«;int;  otliei"  matter  to 
avoid  them.     (Unnecessary  at  the  present  time.) 

6.  The  Jurisdictional  Clause,  containing  an  allegation  that 
the  acts  complained  of  are  contrary  to  Ivjuity.  (Un- 
necessary at  the  present  time,  but  the  bill  as  an  entirety 
must  show  sufficient  equity  to  give  the  Court  jurisdic- 
tion.) 

7.  The  Interrogating  Part,  containing  the  particular  facts 
concerning  which  the  complainant  requires  an  answer. 
(The  requirements  of  the  particular  case  must  determine 
whether  or  not  interrogatories  shall  be  propounded.) 

8.  The  Prayer  for  Relief,  which  may  be  special  (praying 
for  the  particular  relief  to  whicli  the  complainant  thinks 
he  is  entitled),  or  general  (praying  for  such  other  and 
further  relief  as  the  Court  may  think  equitable). 

9.  The  Prayer  for  Process,  containing  a  request  for  the 
issuance  of  the  writ  of  subpoena. 

10.  Signature  of  Solicitor  as  an  evidence  that  the  bill  is  a 
proper  one.  (And  in  Federal  Courts  the  bill  must  be 
verified  by  oath  or  affirmation  of  complainant.) 


NATURE  AND  MODES  OF  DEFENSK. 

Defense  is  cither:  1,  Peremptory,  or  J,  Dilatory. 

The  Modes  of  Defense  are  : 

1.  Disclaimer,  wherein  the  defendant  denies  that  lie  has 
any  right,  title,  or  interest  in  the  subject  matter  of  the 
suit,  or  knowledge,  information  or  belief  concerning  the 
same. 

2.  Demurrer,  which  is  either  general  (going  to  the  whole 
bill  and  assigning  no  particular  cause)  or  sj)ecial  (desig- 
nating the  parts  of  the  bill  intended  to  be  attacked).  A 
demurrer  lies  for  error  apparent  on  the  face  of  the  bill 
and  must  be  in  writing,  but  causes  other  than  those 
specified  may  be  argued  ore  tenvs.  A  demurrer  contends 
that  the  ca.se  as  shown  in  the  bill,  (admitting  it  for  the 


EQUITY    PLEADING. 

sake  of  argument  to  be  correct)  is  not  such  as  to  demand 
an  answer  either  because,  as  stated,  it  does  not  contain 
some  essential  element  necessary  to  the  right,  or  because 
the  right  is  avoided  by  some  fact  contained  in  the  bill 
itself,  or  because  the  bill  is  multifarious,  scandalous  or 
impertinent. 

(Scandal  is  any  matter  which  it  is  not  becoming  the  dignity  of  the  Court 
to  hear  or  which  reflects  on  a  party.  Impertinence  consists  of  needless 
prolixity,  as  setting  forth  deeds  in  haec  verba.  Afultifariousness  is  the 
allegation  of  matters  entirely  distinct  and  unconnected,  or  the  introduc- 
tion of  parties  having  no  interest  in  tlie  subject  matter  or  decree.) 

3.  Plea,  which  is  either  (a)  affirmative,  in  the  nature  of  a 
special  answer  setting  up  and  relying  on  one  or  more 
facts  not  alleged  in  the  bill  as  a  cause  wliy  the  suit 
should  be  delayed,  dismissed  or  barred  ;  (h)  negative, 
denying  one  or  more  facts  set  up  in  the  bill  as  a  cause 
why  the  suit  should  be  delayed,  dismissed  or  barred  ; 
and  (c)  anomalous,  reasserting  and  relying  upon  some 
fact  stated  in  the  bill  and  which  is  therein  impeached 
and  denies  the  facts  and  charges  relied  on  as  a  ground 
for  impeachment. 

(A  plea  must  be  suppoi-ted  by  an  answer  when,  (a)  the  complainant  admits 
the  existence  of  a  legal  bar,  and  alleges  some  equitable  circumstances  to 
avoid  its  effects  and  interrogates  as  to  these  circumstances  and  (b)  when 
the  complainant  does  not  admit  the  existence  of  a  legal  bar  and  states 
some  equitable  circumstances  which  may  be  true,  and  to  Avhich  there 
may  be  a  valid  plea,  together  with  other  circumstances  inconsistent  with 
the  substantial  validity  of  the  plea,  and  interrogates  as  to  the  latter  cir- 
cumstances. ) 

4.  Answer,  which  is  the  response  of  the  defendant  to  the 
interrogatories  contained  in  the  bill.  Generally  speak- 
ing, however,  an  answer  is  the  pleading  in  which  the 
defendant  takes  up  the  allegations  of  the  bill,  paragraph 
by  paragraph,  and  replies  thereto,  either  by  way  of  plea, 
demurrer  or  disclaimer. 

X  

Exceptions  to  Answer  is  the  method  whereby  a  complain- 


JURISDICTIONAL    KULKS.  / 

ant  objects  to  the  sufficienc}'  of  the  defendant's  answer,  eitlier 
in  matters  of  form  or  substance. 

A  decree  is  the  sentence  or  judgment  of  the  Court  pro- 
nounced after  the  liearing  or  submission  of  the  cause.  De- 
crees are  (a)  interlocutory,  pronounced  for  the  purpose  of 
ascertaining  matters  preparatory  to  final  decree  ;  and  (h)  final, 
pronounced  for  the  purpose  of  fully  deciding  and  dis})osing  of 
the  whole  merits  of  the  cause  and  reserving  no  ciucstions  or 
directions  for  the  future  judgment  of  the  Court. 

A  motion  is  an  interlocutory  application  by  or  on  behalf 
of  a  party  to  the  suit.  A  }ietition  may  be  preferred  by  one  a 
party  to  the  suit  or  not.  These  proceedings  relate  to  the 
amendment  of  pleadings,  appointment  of  receiver  and  other 
matters  which  may  arise  after  the  filing  of  the  original  bill, 
and  independent  thereof.     • 

JURISDICTIONAL  RULES. 
,  I. 

EQUITY    HAS    NO    JURISDICTION    WHERE    THE    REMEDY    AT    LAW 
HAS  ALWAYS  BEEN  PLAIN,  ADEQUATE  AND  COMPLETE. 

(1)  The  foregoing  rule  lies  at  the  foundation  of  the  system 
of  equity  jurisprudence.  Equity  does  not  create  rights  which 
the  common  law  denies.  It  had  its  origin  as  we  have  seen  in 
the  necessity  for  specific,  and  more  effectual,  remedies  for 
wrongs  and  injuries  where  the  law  either  gave  no  substantial 
redress,  or,  by  reason  of  the  special  circumstances  of  the 
case,  the  redress  given  was  inadequate  and  practically  un- 
availing. 

(2)  It  is  not  enough  that  there  is  a  remedy  at  law;  in  order 
to  exclude  equity,  it  must  be  "  as  practical  and  efficient  to  the 
ends  of  justice  and  its  prompt  administration  as  the  remedy 
in  equity." 

Boyce  v.  Grundy,  3  Pet,  210,  215  ;  Tyler  r.  Savage,  143  U.  S.,  79,  95; 
Kilboum  v.  Sunderland,  130  U.  S.,  505,  514;  Rich  r.  Braxton,  158  U.  S., 
375,  400. 


8  K<iUITY    PLEADING. 

The  remedy  must  be  plain;  that  is,  neither  doubtful  nor 
obscure. 

It  must  be  ade(jvate ;  that  is,  it  must  not  fall  short,  in  any 
material  particular,  of  the  right  to  which  the  party  is  entitled. 

It  must  be  complete ;  that  is,  it  must  be  able  to  secure  the 
right  of  the  party  in  every  particular  at  the  present  and  for 
the  future. 

Teft  V.  Stewart,  31  Midi.,  367  ;  Frue  c.  Loring,  I'iO  Mass.,  507  ;  Watson 
V.  Sutlierland,  5  Wall.,  74;  North  v.  Peters,  138  U.  S.,  271  ;  Pom.  Eq.  Jur., 
Sec.  180  ;  Riley  (-.Carter,  76  Md..  581,597  ;  Scarborough  v.  Scotten,  69  Md., 
137,  140 

(3)         EQUITY  IN  THE  FEDERAL  COURTS. 

(«)  The  Constitution  of  the  United  States  declares  that 
"  the  judicial  power  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  Constitution,  the  laws  of  the  United 
States  and  treaties  made,  or  which  shall  be  made,  under  their 
authority." 

This  has  been  held,  from  the  beginning,  as  preserving  the 
distinction  between  common  law  and  equity  as  it  existed  in 
England  at  the  time  of  the  adoption  of  the  Constitution. 
"The  remedies  in  the  courts  of  the  United  States  are  to  be, 
at  common  law  or  in  equity,  not  according  to  the  practice  of 
State  courts  but  according  to  the  principles  of  common  law 
and  equity,  as  distinguished  and  defined  in  that  country  from 
which  we  derive  our  knowledge  of  those  principles."  (Robin- 
son V.  Campbell,  3  Wheat,  212,  223.     See  Equity  Rule  90.) 

The  Judiciary  Act  of  1789  declared  that  suits  in  equity 
should  not  be  sustained  in  any  case  where  "  plain,  adequate 
and  complete  remedy  may  be  had  at  law." 

The  Supreme  Court  has  held  to  the  strict  observance  of  this 
rule  and  has  often  refused  to  follow  the  practice  of  the  State 
courts  under  statutes  extending  jurisdiction  in  equity  to  cases 
formerly  cognizable  only  at  law,  save  in  special  cases  where 
the  general  subject  matter  is  of  an  equitable  character  or 
founded  on  some  recognized  ground  of  equity  interposition. 

Catesu  Allen,  149  U.  S.,  451;  Scott  v.  Neely,  140  U.S.,  106;  Lindsay  v. 


JL'KIi^DKTIONAL    KII.KS.  0 

Slirovcport  Bank.  I.')(i  I'.  S.,  48.'). -l!i:>;  Wliitclivad  /■.  Sliatliirk.  l.'SS  f.  S., 
14();  Gormley  r.  (lark,  134  V.  S.,  838;  Lanjjdon  r.  SliLiwuiul.  124  I".  S..  74; 
Holland  (>.  Challen,  110  U.  S.,  15;  \\Vhnn;in  r.  Conklin,  Lm  V.  S..:!14; 
Buzard  r.  Houston.  119  V.  S.,  :]47;  I-ewis  i:  Cocks.  23  Wall..  4(;(i;  Tlionip- 
son  V.  R.  K.  Co.,  6  Wall.,  134;  Hipp  /•.  Babin,  19  How.,  L>7!:  Ho.vw  r. 
Grundy,  3  Pet.,  210;  Russell  ?■.  Clark,  7  Crandi,  (il»,  SO;  Osborne  r.  M.  l>. 
Ey.  Co.,  147  U.  S.,  24»,  258;  X.  Y.  (luaranly  Co.  r.  Mt-nipliis  Water  (  c . 
107  r.  S.,  205,  214. 

(b)  Ordinarily,  the  want  of  jurisdiction  in  equity,  when  not 
apparent  on  the  face  of  the  bill,  must  be  brought  to  the  atten- 
tion of  the  court  by  plea  or  answer.  (Wylie  v.  Cox,  15  How., 
415,  420.) 

But  the  court  may,  of  its  own  motion,  dismiss  a  bill  for 
want  of  jurisdiction  when,  from  the  allegations,  or  the  proofs, 
it  is  plain  that  there  is  no  proper  case  in  equity. 

Lewis  V.  Cocks,  23  Wall.,  46(5;  Oelrichs  v.  Spain,  15  Wall..  21 1 .  228;  .MU-n 
V.  Pullman  Palace  Car  Co.,  139  U.  S.,  658,  662. 

Where,  however,  the  subject  matter  is  one  within  the  gen- 
eral scope  of  the  jurisdiction  in  equity,  the  objection  that  there 
is  a  plain,  adequate  and  complete  remedy  at  law,  in  the  par- 
ticular case,  must  be  made  in  limine. 

Reynes  v.  Duniont,  130  U.  vS.,  354,  895;  Hollins  v.  lUiarfield  Coal  A  Iron 
Co.,  150  U.  S.,  371,  380;  Merwin  Eq.,  H  104-109. 

A  decree,  therefore,  in  such  cases,  or  in  one  where,  the 
question  being  made,  the  court  has  erroneously  determined 
that  it  had  jurisdiction,  is  binding  and  cannot  be  impeached 
collaterally. 

Mellen  r.  Moline  Iron  Works,  131  U.  S.,  352,  367. 

II. 

EQUITABLE    JUEISDKJTION    IS,    IN    GENERAL,    NOT    OUSTED    BY    A 
SUBSEQUENT   EXPANSION  OF  THE   LE(;AL   REMEDY. 

(1)  Bispham  says,  upon  excellent  authority  :  "  If  a  court  of 
ec[uity  has  originally  assumed  jurisdiction  over  a  particular 
class  of  cases,  it  will  not,  as  a  general  rule,  be  ousted  from 
that  jurisdiction  simply  because,  in  the  progress  of  common 


10  EQUITY    PLEADING. 

law  improvement,  redress  comes  to  be  subsequently  attainable 
at  law." 

Pr.  of  Equity,  5  ed. ,  p.  62;  1  Story  Eq.  Jur.,  Sec.  64,  i;  1  Pomeroy  Eq. 
Jur. ,  Sees.  182,  276,  277;  Svreeny  r.  Williams,  36  N.  J.  Eq. ,  627;  Simmons 
Creek  Coal  Co.  v.  Doran,  142  U.  S.,  417,  449. 

(2)  Nor  will  the  jurisdiction  be  considered  as  ousted  by  a 
statute  giving  a  remedy  at  law.  The  statutory  remedy  will 
be  regarded  as  cumulative  unless  the  contrary  intention  be 
expressed  or  shown  by  necessary  implication. 

Darst  V.  Phillips,  41  Ohio  St.,  514;  Phillips  v.  Kelly,  12  Or.,  213;  Sweeny 
V.  Williams,  36  N,  J.  Eq.,  627;  Lee  ij.  Lee,  54  Ala.,  590;  1  Story  Eq.  Jur., 
Sec.  80;  1  Pom.  Eq.  Jur.,  Sec   182. 

(3)  An  important  exception  to  the  general  rule,  is,  that  a 

court  of  equity  will  not  now  entertain  a  bill  by  the  assignee 

of  a  strictly  legal   right  merely  because  he  cannot  bring  an 

action  at  law  in  his  own  name;  for  the  reason  that  he  has  a 

plain  and  adequate  remedy  at  law  by  an  action  in  the  name 

of  his  assignor,  to  his  own  use. 

Walker  v.  Brooks,  125  Mass.,  241;  Hay  ward  r.  Andrews,  106  U.  S.,  672^ 
677;  N.  Y.  Guaranty  Co.  v.  Memphis  Water  Co.,  107  U.  S.,  205,  214;  Glenn 
r.  Marbury,  145  U.  S.,  499,  508;  Notes  to  Ryall  v.  Rowles,  2  L.  C.  Eq.,  4  ed., 
pp.  1567  and  1670.  __ 

III. 

EQUITY  JURISDICTION,  HAVING  ONCE  ATTACHED  TO  A  CASE,  WILL 
BE  MAINTAINED  FOR  THE  PURPOSE  OF  COMPLETE  RELIEF 
THROUGH  THE  FINAL  ADJUDICATION  OF  ALL  RIGHTS  IN- 
VOLVED. 

(1)  The  prime  object  of  this  rule  is  the  prevention  of  a 
multiplicity  of  suits,  which  is  a  favorite  doctrine  of  equity. 

It  means  that  when  its  jurisdiction  has  been  invoked,  in 
good  faith,  for  a  purpose  clearly  within  its  powers,  a  court  of 
equity  will  proceed  to  administer  complete  and  effectual  relief 
though  in  so  doing  it  may  become  necessary  to  determine 
some  questions,  ordinarily  cognizable  alone  at  law.  For 
example  :  equity  has  no  jurisdiction  to  award  compensation 


JURISDICTIONAL    RULES.  11 

in  damages  when  tluit  is  the  remedy  sought;  but  if  tlie  bill 
seeks  other  rehef,  that  can  only  be  given  in  eciuity,  and 
damages  are  incidental  thereto  it  will  proceed  to  award  them. 

Merchants  Ins.  Co.  v.  Tayloe,  9  How.,  390;  Pha>ni.x  Ins.  Co.  v.  Kyltnul,  09 
Md.,  437;  Lynch  v.  Metropolitan  EI.  Ry.  Co.,  129  N.  Y.,  274;  McGean  v. 
Met.  El.  Ry.  Co.,  133  N.  Y.,  9;  Pom.  Eq.  Jur.,  8ecs.  181,  231,  242;  Tyler 
V.  Savage,  143  U.  S.,  79,  97;  Gormley  v.  Clark,  134  U.  S.,  338,  349;  Milk- 
man V.  Ordway.  106  Mass.,  232;  Combs  v.  Scott,  70  Wis.,  002,  071;  Virginia 
A.  M.  &  M.  Co.  v.  Hale,  93  Ala.,  542;  3  Pom.  Eq.,  Sec.  1410. 

(2)  The  doctrine  has  been  extended  to  the  granting  of  relief 
to  the  defendant,  by  way  of  cross-bill,  in  a  subject  matter 
which,  if  independently  prosecuted,  would  be  cognizable  only 
at  law. 

Sunflower  Oil  Co.  v.  Wilson,  142  U.  S.,  313,  325;  Chicago,  etc.,  Ry.  Co.  v. 
Chicago  Bank,  134  U.  S..  276,  288. 

(3)  The  rule  is  subject  to  the  qualification,  that  the  mere 
allegation  of  a  ground  of  equity  jurisdiction,  or  of  exclusive 
equitable  relief,  is  not  sufficient.  So,  w^here  a  cause  of  action 
cognizable  at  law  is  entertained  in  equity  on  the  ground  of 
some  equitable  relief  sought  by  the  bill,  which  it  transpires 
can  not,  for  defect  of  proof  or  for  other  reason,  be  granted,  the 
court  is  without  proper  jurisdiction  and  should  dismiss  the 
bill  without  prejudice. 

Russell  r.  Clark,  7  Cranch,  69,  89;  Dowell  r.  Mitchell,  105  U.  S.,430; 
Rogers  ?'.  Durant,  100  U.  S.,  644;  Buzard  v.  Houston,  119  U.  S.,  347.  354; 
Morss  V.  Elmendorf,  11  Paige  Ch.,  277;  Dudley  v.  Congregation  of  St.  Francis, 
138  N.  Y.,  451,  458;  Saner  c.  Ferris,  145  111.,  115;  Palmer  v.  Fleming.  1 
App.  D.  C,  p.  533;  Kennedy  v.  Ilazleton,  128  U.  8.,  007,  071;  Merwin  Eq., 
§398. 

IV. 

COURTS  OF  EQUITY  HAVE  NO  INHERENT  JURISDICTION  IN  EITHER 
OF  THE  FOLLOWING  CASES: 

1.  TO  PREVENT  THE  COMMISSION,  OR  INTERFERE  WITH  THE 
PROSECUTION,  OF    CRIMES. 

2.  OVER  THE  ELECTION  OR  APPOINTMENT  AND  REMOV.VL  OF 
PUBLIC    OFFICERS. 

(1)  One  of  the  earliest  instances  in  which  equity  exerci-sed 


12  EQUITY    PLEADING. 

jurisdiction,  in  order  to  supply  the  deficiencies  in  remedies  at 
law,  was,  where,  in  cases  of  assault  and  trespass  and  other 
outrages  by  violence,  the  petitioner  for  relief  alleged  that  "  he 
was»unable  to  obtain  redress  owing  to  the  position  or  power- 
ful connections  of  his  adversary."  Out  of  this  grew  the  writ 
of  suppUcavit,  which  was  granted  upon  the  complaint  of  a 
suitor  of  the  court  that  he  had  been  abused  and  stands  in 
danger  of  his  life  from  another  suitor,  to  take  the  offending 
party  into  custody  and  compel  him  to  give  bail  for  his  good 
behavior.  (Bispham  Eq.,  Sec.  8  ;  Adams  Eq.,  Introduction, 
XXXI.) 

With  the  exception  of  the  foregioing  remedies,  which  them- 
selves were  really  founded  upon  an  infringement  of  rights  of 
property  and  which  also  soon  fell  into  disuse,  equity  jurisdic- 
tion has,  from  the  first,  limited  itself  to  the  protection  of  civil 
rights,  as  distinguished  from  cases  of  criminal  cognizance. 

Injury  to  property  or  rights  of  property,  actual  or  pros- 
pective, is  the  ancient  and  sure  foundation  upon  which  the 
jurisdiction  rests. 

In  re  Sawyer,  124  U.  S.,  200;  Cope  v.  District  Fair  Association,  99  111., 
489;  Crighton  c.  Dahraer,  70  Miss..  602;  Atty.  Gen.  v.  Tudor  Ice  Co.,  104 
Mass.,  239;  Atty.  Gen.  v.  Utica  Ins.  Co.,  2  Johns.  Ch.,  371;  Sheridan  v.  Col- 
vin,  78  111.,  237;  Cochrane  v.  McLeary,  22  Iowa,  75;  1  Pomeroy  Eq.,  Sec. 
197;  High  on  Injunctions,  Sees.  20,  68,  272;  Kerr  v.  Corp.  of  Preston,  L.  R., 
6  Ch.  Div.,  163;  Saull  v.  Browne,  10  Ch.,  64. 

(2)  Of  late  years  there  has  been  a  disposition,  in  some  of 
the  States,  to  confer  jurisdiction  in  equity  for  the  prevention 
of  offences  that  affect  public  morals  and  are  therefore  declared 
public  nuisances  ;  for  example,  selling  liquor,  gambling,  and 
keeping  disorderly  houses.  It  has  been  held  that  such  legis- 
lation is  not  inconsistent  with  the  constitutional  guarantees  of 
liberty  and  property  and  trial  by  jury. 

Mugler  c.  Kansas,  123  U.  S..  623,  670;  Eilenbacker  r.  Plymouth  Co.,  134 
U.  S.,31. 

(3)  The  rule  has  this  important  (qualification  :  Equity  will 
not  refuse  to  restrain   tlie  doing  of  an  act  where  serious  and 


JURISDKTIOXAL    KULKS.  13 

irreparable,  or  incstiiuable  danuige  would  result  to  ])rivate 
property,  simply  because  it  might  also  be  jamislied  as  a  crime. 
It  will,  therefore,  enjoin. the  commission  oi' nuisances  and  con- 
tinued trespasses  and  destruction  of  property  notwithstanding 
the  acts  may  be  offences  against  the  criminal  laws.  In  such 
cases  the  remedies  are  concurrent. 

The  protection  of  property,  or  private  rights,  ought,  how- 
ever, clearly  to  appear  to  be  the  real  motive,  and  not  the  en- 
forcement of  a  criminal  law. 

In  re  Debs,  158  U.  S.,  564;  Arthur  c.  Cakes,  63  Fed.  Rep.,  310;  Toledo, 
etc.,  R.  Co.  V.  Penna.  Ry.  et  al.,  54  Fed.  Rep..  730;  Cranford  v.  Tyrrell,  128 
N.  Y.,  341;  Marsan  r.  French,  61  Tex.,  175;  Mobile  v.  L.  &  N.  R.  R.,  84 
Ala.,  115;  Carlisle  v.  Cooper,  21  N.  J.,  Eq.,  576;  Sherry  v.  Perkins,  147 
Maas.,  212. 


CHAPTER  I. 

JURISDICTION  OF  EQUITY  COURTS MISCELLANEOUS  RULES, 

Rule  90. 

In  all  cases  where  the  rules  prescribed  by  this  court  or  by 
the  circuit  court  do  not  apply,  the  practice  of  the  circuit  court 
shall  be  regulated  by  the  present  practice  of  the  high  court 
of  chancery  in  England,  so  far  as  the  same  may  reasonably  be 
applied  consistently  with  the  local  circumstances  and  local 
conveniences  of  the  district  where  the  court  is  held,  not  as 
positive  rules,  but  as  furnishing  just  analogies  to  regulate  the 
practice. 

Bale  1. 

The  circuit  courts,  as  courts  of  equity,  shall  be  deemed 
always  open  for  the  purpose  of  filing  bills,  answers,  and  other 
pleadings ;  for  issuing  and  returning  mesne  and  final  pro- 
cess and  commissions ;  and  for  making  and  directing  all 
interlocutory  motions,  orders,  rules,  and  other  proceedings, 
preparatory  to  hearing  of  all  causes  upon  their  merits. 

Bute  2. 

The  clerk's  oflEice  shall  be  open,  and  the  clerk  shall  be  in 
attendance  therein,  on  the  first  Monday  of  every  month,  for 
the  purpose  of  receiving,  entering,  entertaining  and  disposing 
of  all  motions,  rules,  orders  and  other  proceedings,  which  are 
grantable  of  course,  and  applied  for,  or  had  by  the  parties  or 
their  solicitors,  in  all  causes  pending  in  equity,  in  pursuance 
of  the  rules  hereby  prescribed. 

Bule  3. 

Any  judge  of  the  circuit  court,  as  well  in  vacation  as  in 

(14) 


MISCELLANEOUS    KULES.  15 

term,  may,  at  chambers,  or  on  (lie  ruk'-days  at  the  clerk's 
office,  make  and  direct  all  such  interlocutory  orders,  rules, 
and  other  proceedings,  preparatory  to  the  hearing  of  all  causes 
upon  their  merits  in  the  same  manner  and  with  the  same 
effect  as  the  circuit  court  could  make  and  dii-ect  the  same  in 
term,  reasonable  notice  of  the  application  therefor  l^eing  first 
given  to  the  adverse  part}^  or  his  solicitor,  to  appear  and  show 
cause  to  the  contrary,  at  the  next  rule-day  thereafter,  unless 
some  other  time  is  assigned  by  the  judge  for  the  hearing. 

Mule  4. 

All  motions,  rules,  orders,  and  other  proceedings,  made  and 
directed  at  chambers,  or  on  rule-days  at  the  clerk's  office, 
whether  special  or  of  course,  shall  be  entered  by  the  clerk  in 
an  order-book,  to  be  kept  at  the  clerk's  office,  on  the  da}'  when 
they  are  made  and  directed ;  which  book  shall  be  open  at  all 
office  hours  to  the  free  inspection  of  the  parties  in  any  suit  in 
equity,  and  their  solicitors.  And,  except  in  cases  where  per- 
sonal or  other  notice  is  specially  rec^uired  or  directed,  such 
entry  in  the  order-book  shall  be  deemed  sufficient  notice  to 
the  parties  and  their  solicitors,  without  further  service  thereof, 
of  all  orders,  rules,  acts,  notices,  and  other  proceedings  entered 
in  such  order-book,  touching  any  and  all  the  matters  in  the 
suits  to  and  in  which  the}'  are  parties  and  solicitors.  And 
notice  to  the  solicitors  shall  be  deemed  notice  to  the  parties 
for  ^rhom  they  appear  and  whom  they  represent,  in  all  cases 
where  personal  notice  on  the  parties  is  not  otherwise  specially 
required.  Where  the  solicitors  for  all  the  parties  in  a  suit 
reside  in  or  near  the  same  town  or  city,  the  judges  of  the 
circuit  court  may,  by  rule,  abridge  the  time  for  notice  of  rules, 
orders,  or  other  proceedings  not  requiring  personal  service  on 
the  parties,  in  their  discretion. 

liule  5. 

All  motions  and  applications  in  the  clerk's  office  for  the 
issuing  of  mesne  process  and   final   process  to   enforce  and 


16  EQUITY    PLEADING. 

execute  decrees ;  for  filing  bills,  answers,  pleas,  demurrers, 
and  other  pleadings ;  for  making  amendments  to  bills  and 
answers;  for  taking  bills  jrro  confesso ;  for  filing  exceptions; 
and  for  other  proceedings  in  the  clerk's  office  which  do  not, 
by  the  rules  hereinafter  prescribed,  require  any  allowance  or 
order  of  the  court  or  of  any  judge  thereof,  shall  be  deemed 
motions  and  applications  grantable  of  course  by  the  clerk  of 
the  court.  But  the  same  may  be  suspended,  or  altered,  or 
rescinded  by  any  judge  of  the  court,  upon  special  cause  shown. 

Hide  (i. 

All  motions  for  rules  or  orders  and  other  proceedings,  which 
are  not  grantable  of  course  or  without  notice,  shall,  unless  a 
different  time  be  assigned  by  a  judge  of  the  court,  be  made  on 
a  rule-day,  and  entered  in  the  order-book,  and  shall  be  heard 
at  the  rule-day  next  after  that  on  which  the  motion  is  made. 
And  if  the  adverse  party,  or  his  solicitor,  shall  not  then 
appear,  or  shall  not  show  good  cause  against  the  same,  the 
motion  may  be  heard  by  any  judge  of  the  court  ex  parte,  and 
granted,  as  if  not  objected  to,  or  refused,  in  his  discretion. 

LEWIS  V.  SHAINWALD. 
(Circuit  Court  for  California  :  7  Sawyer,  403-418.     1881.) 

Opinion  by  Sawyer,  J. 

Statement  of  Facts. — This  is  a  bill  in  equity,  called  by 
appellant's  counsel  a  creditor's  bill,  based  upon  a  prior  pro- 
ceeding, in  which  a  decree  had  been  entered  in  the  district 
court  against  the  respondent,  appellant  here,  for  a  large  sum 
of  money,  and  execution  issued,  upon  which  a  return  of  nulla 
bona  had  been  made. 

It  is  claimed  by  the  respondent  that,  prior  to  the  adoption 
of  the  Revised  Statutes  in  the  state  of  New  York,  no  such 
thing  as  a  creditor's  bill,  in  the  sense  since  used,  was  known  ; 
that  a  creditor's  bill  of  the  character  here  set  forth  was  un- 
known to  the  court  of  chancery  ;  and  that,  therefore,  the  case 
is  not  properly  one  of  equity  jurisdiction.  Upon  this  propo- 
sition some  decisions  of  the  English  courts  are  cited  ;  and  it 
appears  that  some  of  the  later  decisions  overrule  some  of  the 
former  ones  upon  certain  points. 


LEWIS    V.     SIIAINWAI.D.  17 

In  this  conncctUMi  e(|uitv  nilc  '.)()  is  cited  as  Iiavintj;  a  Injur- 
ing upon  the  ease,  as  piescribing  that  the  English  chancery 
practice  shall  be  adopted  in  cases  where  our  ecpiity  rules  do 
not  apply.     That  rule  is  as  follows  : 

"  In  all  cases  where  the  rules  prescribed  by  this  court  or  by 
the  circuit  court  do  not  apply,  the  })raetice  oi"  the  circuit  court 
shall  be  regulated  by  the  present  practice  of  the  high  court  of 
chancery  of  England,  so  far  as  the  same  may  reasonably  bo 
ajiplied  consistently  with  the  local  circumstances  and  local 
convenience  of  the  district  where  the  court  is  held,  not  as 
positive  rules,  but  as  furnishing  just  analogies  to  regulate  the 
practice." 

.  In  my  judgment,  that  rule  does  not  in  any  way  affect  the 
question.  The  jurisdiction  of  this  court  is  derived  from  the 
Constitution  and  laws  of  the  United  States,  and  these  rules  are 
simply  rules  of  practice,  for  regulating  the  mode  of  proceeding 
in  the  courts.  They  do  not,  and  could  not,  properly,  either 
limit  or  enlarge  the  jurisdiction  of  the  court.  The  rule  quoted 
simply  regulates  the  practice  in  exercising  the  jurisdiction  of 
the  court  in  those  respects  wherein  the  rules  adopted  do  not 
apply;  but  the  practice  of  the  high  court  of  chancery  is  to  be 
applied,  not  as  controlling,  but  simply  as  furnishing  just 
analogies  to  regulate  the  practice. 

I  am  satisfied  tliat  creditors'  bills,  of  some  kinds,  whether 
of  the  precise  character  of  that  now  under  consideration  or 
not,  were  entertained  both  by  the  English  chancery  courts 
and  in  the  courts  of  chancery  in  the  several  states,  particu- 
larly in  the  courts  of  New  York,  prior  to  the  adoption  of  the 
Revised  Statutes  of  the  latter  state.  The  creditors'  bills  which 
were  recognized  previous  to  that  time  were,  perhaps,  in 
different  form  from  that  then  adopted  ;  but  there  undoubtedly 
were  instances  of  bills  maintained  by  creditors  to  subject  the 
assets  of  del:)tors  to  the  payment  of  their  debts.  The  discus- 
sions upon  the  subject  related  mainly  to  the  character  of  the 
assets  and  the  circumstances  of  the  particular  case. 

In  the  case  of  Hadden  v.  Spader,  20  Johns.,  554,  before  the 
court  of  errors,  and  in  which  the  decision  of  Chancellor  Kent 
sustaining  a  creditor's  bill  is  affirmed,  I  think  the  rule  is 
established  that  certain  assets  can  be  reached  and  appro- 
priated by  a  bill  filed  by  a  creditor  ;  and  several  prior  cases.- 
recognized  the  same  principle. 

In   the  subsequent  case   of  Donovan  v.   Einn,   llopk.,  51), 
2 


18  EQUITY    PLEADING. 

there  was  suggested  some  limitation.  That  case,  however,  did 
not  overrule,  or  purport  to  overrule,  as  it  could  not,  the 
•decision  of  the  court  of  errors  in  the  case  last  referred  to. 
Indeed,  the  two  decisions,  as  to  the  real  point  involved  and 
decided,  do  not  conflict.  The  latter  case  was  one  into  which 
the  element  of  fraud,  either  actual  or  constructive,  did  not 
enter.  It  was  simpl}'^  a  case  where  a  legacy  had  been  left  to 
a  debtor,  which  was  in  the  hands  of  an  executor,  and  a 
creditor's  bill  was  filed  to  reach  that  legacy.  There  was  no 
collusion  or  fraud,  or  voluntary  conveyance,  or  other  subject- 
matter  of  equity  jurisdiction  in  the  case.  The  debt  was 
treated  as  an  lionest  debt;  and  tlie  chancellor  held  that  it 
could  not  properly  be  reached  by  a  creditor's  bill.  He 
recognizes,  however,  the  propriety  of  filing  such  bills  in  cases 
of  fraud.  Frauds  and  trusts  are  in  themselves  subjects  of 
equity  jurisdiction.  Indeed,  matters  of  fraud  and  trusts  are 
among  the  most  extensive  heads  of  equity  jurisdiction. 
Wherever  there  is  fraud  in  a  case  which  cannot  be  fully 
remedied  at  law,  equity  intervenes  and  uncovers  the  fraud; 
and  the  fact  that  a  creditor  is  injured  by  a  fraudulent  con- 
cealment or  withholding  of  propert}'  brings  him  into  such 
relations  to  the  fraudulent  transaction  that  he  may,  on  that 
ground,  invoke  the  equitable  jurisdiction  of  a  court  of  equity; 
have  the  fraud  uncovered,  and  take  hold  of  the  funds  or  the 
property  fraudulently  concealed  and  withheld  from  him.  He 
comes  within  the  jurisdiction  of  the  court,  not  merely  because 
he  is  a  creditor  ;  not  because  his  bill  is  a  creditor's  bill;  but 
because  he  presents  a  case  in  which  he  sets  forth  matters  of 
fraud  or  trust;  and  equity  entertains  his  bill  simply  because 
he  stands  in  such  a  relation  to  the  fraudulent  transaction  that 
he  is  entitled  to  have  the  fraud  uncovered,  or  a  trust  declared 
and  enforced. 

This  principle  is  recognized  in  the  case  last  referred  to.  I 
read  from  the  decision  as  reported  in  14  American  Decisions, 
page  533.  After  stating  that  "it  is  apparent  that  this  case 
does  not  belong  to  any  general  head  of  equitable  jurisdiction, 
such  as  frauds,  trusts,  accidents,  mistakes,  accounts,  or  the 
specific  performance  of  contracts;"  that  "there  is  neither 
fraud,  nor  trust,  nor  accident,  nor  any  other  ingredient  of 
equitable  jurisdiction,"  the  chancellor  proceeds  to  say: 

"  The  English  cases  cited  proceeded,  as  I  conceive,  not  upon 
the  ground  of  subjecting  the  credits  of  the  judgment  debtor  to 


LKWIS    V.    SlIAINWALI).  li> 

the  payment  of  his  debts,  but  ui)on  some  ground  of  (.'(juitable 
jurisdiction,  as  fraud  or  trust,  existing  in  each  case.  .  .  .  The 
case  of  Bayard  v.  Hoffman,  4  Johns'  Ch.,  450,  was  not  the 
case  of  a  judgment  creditor;  but  tlie  object  of  the  suit  was  to 
annul  an  assignment  in  trust,  made  by  a  debtor  without  con- 
sideration. The  assignor  was  insolvent  when  the  assignment 
was  made;  that  ftict  not  being  then  known,  no  actual  fraud 
was  intended  ;  but  the  assignment  had  all  tlie  operation  of 
fraud  against  the  creditors  of  the  insolvent  debtor;  and  for 
these  reasons  the  cause  was  of  equitable  jurisdiction.   .   .  . 

"  The  case  of  Hadden  v.  Spader,  5  Johns.  Ch.,  280,  and 
20  id.,  554,  was  also  a  case  of  an  assignment  by  an  insolve;it 
debtor  of  property  upon  various  trusts.  It  was  clearly  a  case 
of  trust;  the  assignment  was  charged  to  have  been  made  by 
fraud,  and,  though  the  answers  denied  that  fraud  was  in- 
tended, the  facts  exhibited  a  case  of  fraud.  The  effect  of  the 
assignment,  if  it  had  prevailed,  would  have  been  to  withdraw 
and  screen  from  execution  the  property  of  the  debtor  ;  the 
assignment  was  held  to  be  void,  and  the  judgment  creditor 
had  relief.  These  are  the  principal  cases  which  have  been 
adjudged  in  this  court,  and  in  all  of  them  some  acknowledged 
ground  of  equitable  jurisdiction  existed.  In  general  they 
■were  suits  to  set  aside  conveyances,  which  prevented  the 
seizure  of  property  by  the  sheriff,  and  the  conveyances  have 
been  considered  frauds,  either  actual  or  constructive.    .  .  . 

"  In  giving  relief  in  such  cases,  this  court  does  not  proceed 
upon  the  idea  of  giving  execution  against  a  species  of  i^roperty 
which  is  exempt  from  execution  at  law;  but  it  acts  upon  some 
of  the  most  ancient  grounds  of  its  jurisdiction,  whicii  enable 
it  to  give  relief  in  cases  of  fraud  and  trust,  either  to  a  judg- 
ment creditor  or  to  any  other  person  M'hose  just  rights  may 
be  destroyed  or  impeded  by  such  a  cause.   .   .   . 

"  I  fully  concur  with  Judge  Piatt  in  his  opinion  given  in 
the  case  of  Hadden  v.  Spader,  and  in  his  view  of  the  powers 
and  jurisdiction  of  this  court,  in  respect  to  the  rights  and 
remedies  of  creditors.  The  case  now  to  be  decided  lias  not 
one  feature  of  equitable  jurisdiction.  In  it  there  is  neitlier 
fraud,  nor  trust,  nor  conveyance  of  property,  nor  any  inter- 
ruption of  the  effect  of  an  execution  or  the  due  course  of  jus- 
tice at  law.  .   .  . 

"But  when  equit}'  has  jurisdiction,  by  reason  of  some  dis- 
position    of    the    debtor's    proj)erty,   made    in   fraud    of    tlie 


20  EQUITY    TLEADING. 

creditor,  and  wJieii,  in  such  a  case,  the  slicriff  of  the  county  in 
which  the  property  is  situated  returns  upon  the  execution  that 
no  property  is  found,  the  return  is  important  evidence  to 
show  that  the  fraudulent  disposition  has  had  effect  by  pre- 
venting the  service  of  the  execution.  By  the  existing  law, 
the  property  of  a  debtor  consisting  of  things  in  action  held  by 
him  without  fraud  is  not  subject  to  the  effect  of  any  execution 
issued  against  his  property;  and  while  a  court  of  law  does  not 
reach  these  things  by  its  execution,  a  court  of  equity  does  not 
reach  them  by  its  execution  for  the  purpose  of  satisfying 
either  judgments  at  law  or  decrees  in  equity. 

"  All  conveyances  made  to  defraud  creditors  are  void,  both 
in  law  and  equity.  When  a  fraud  api^ears  to  a  court  of  law, 
the  conveyance  is  there  adjudged  void.  When  such  a  fraud 
is  presented  to  this  court,  it  is  of  equitable  jurisdiction  ;  and 
the  property  of  the  debtor  fraudulently  transferred  is  subject 
to  the  satisfaction  of  his  debts,  in  favor  of  a  creditor  complain- 
ing of  the  fraud.  Does  an  insolvent  debtor  transfer  his  prop- 
erty to  another  person  in  trust  for  himself,  or  in  such  a 
manner  as  to  defeat  the  effect  of  a  judgment  and  an  execu- 
tion ?  Tliis  is  the  frecjuent  case.  It  is  a  case  of  both  fraud 
and  trust,  and  it  is  of  equitable  jurisdiction.  It  was  the  case 
of  iVIcDermut  v.  Strong,  and  of  Hadden  v.  Spader.  In  all 
such  cases  this  court  vacates  the  fraud,  sets  aside  the  convey- 
ance in  trust,  and,  acting  both  upon  the  debtor  and  his 
trustee,  it  does  complete  justice  to  the  creditor.  Thus  the 
jui-isdiction  of  this  court  reaches,  and  reaches  effectually, 
those  cases  of  fraudulent  conveyances  and  assignments  in 
trust,  which  form  the  great  and  most  vexatious  impediment 
in  the  course  of  justice  between  creditor  and  debtor.  Bills 
for  discovery,  where  no  relief  is  sought,  also  afford  important 
aid  to  creditors  against  their  debtors.  But  this  court  has  no 
power  to  cause  stocks,  credits  and  rights  of  action,  held  by  a 
debtor,  without  fraud,  to  be  sold  or  converted  into  money,  to 
be  transferred  to  the  creditor  or  to  be  applied  to  the  payment 
of  debts." 

Now  this  is  the  distinction  between  this  case  of  Donovan  v. 
Finn  and  the  other  cases  referred  to.  In  the  latter  case  it  is 
the  element  of  fraud  which  brings  them  within  the  jurisdic- 
tion ;  and  a  creditor,  as  well  as  any  other  party  who  is  injured 
by  the  fraud,  is  able  to  maintain  a  bill  to  have  the  fraudulent 
act  vacated,  and  to  be  relieved  from  the  consequences  of  it. 


LEWIS    V.    SIIAINWAI.D.  21 

In  a  note  appended  to  the  report  of  the  ease  hi.st  eited  it  is 
said  :  "  It  is  doubtful,  where  there  lias  been  no  legislation 
upon  the  subject,  whether,  in  the  absence  of  fraud  or  any 
other  well-known  ground  for  sui)poi'ting  the  exercise  of  its 
jurisdiction,  equity  will  assist  a  creditor  to  reach  those  assets 
of  his  debtor  which  under  no  circumstances  could  have  been 
subject  to  execution  at  law." 

A  large  number  of  eases  are  then  cited  ;  and  it  is  then 
added  :  "  What  stocks,  choses  in  action,  franchises  and  other 
property  which  was  not  subject  to  execution  at  common  law, 
can  now,  in  the  absence  of  any  statute  on  the  subject,  be 
reached  by  a  creditor's  bill,  must  still  be  regarded  as  unsettled. 
By  such  bills  creditors  have  in  several  instances  succeeded  in 
obtaining  satisfaction  out  of  the  interest  of  an  heir  or  dis- 
tributee while  still  in  the  hands  of  an  executor  or  adminis- 
trator." Then  follows  another  citation  of  numerous  authori- 
ties, which  I  have  not  examined,  as  I  did  not  consider  it 
necessary  to  this  decision. 

In  this  case  the  charge  of  fraud  is  set  up  in  the  bill,  in 
which  it  is  alleged  that  the  respondent  has  made  fraudulent 
transfers  of  his  property  ;  has  converted  portions  of  it  into 
money,  and  secreted  the  proceeds  ;  that  other  property,  to  the 
amount  of  many  thousands  of  dollars,  has  been  concealed 
from  the  complainant  in  order  to  prevent  him  from  securing 
it  by  execution  issued  under  the  decree  of  the  court ;  and  that 
he  is  about  to  carry  all  his  money  and  other  property  beyond 
the  jurisdiction  of  the  court ;  the  notorious  and  declared  pur- 
pose of  all  these  acts  being  to  defraud  the  complainant,  and 
render  it  im[)Ossible  for  him  to  realize  any  portion  of  the 
amount  to  which  he  is  entitled  under  the  decree,  ^ly  his 
demurrer  the  respondent  admits  these  averments  of  the  bill, 
and  takes  his  stand  upon  the  point  that  the  court  is  without 
jurisdiction  to  entertain  or  determine  a  cause  of  the  chai'acter 
of  that  which  is  set  forth  in  the  bill. 

The  case  of  Mountford  v.  Taylor,  G  Ves.  Jun.,  787,  which 
has  been  cited  here,  was  a  case  similar  to  the  one  at  bar. 
The  bill  stated  that  the  judgments  were  obtained  at  a  time 
when  "  the  defendant  was,  ever  since  has  been,  and  now  is, 
seized  for  his  own  use  of  freehold  estates  foi-  his  life  or  some 
greater  estate;  that  the  plaintiffs  sued  out  writs  of  clq/it  uj)on 
these  judgments;  but  neither  of  them  has  been  able  to  dis- 
cover where  the  estates  of  the  defendant  are  situate,"  and 


22  EQUITY    PLPJADING. 

does  not  know  what  they  are  or  where  they  are.  But  the 
comphiinant  charges  that  in  or  about  the  year  1795,  some  years 
before,  the  defendant,  upon  taking  a  seat  in  the  house  of  com- 
mons, took  the  oath  as  to  his  having  the  requisite  amount  of 
property  to  qualify  him  to  act  as  a  member  of  that  body,  and 
that  "  he  also  delivered  to  the  clerk  of  the  house  of  commons, 
or  some  other  officer  of  the  house,  a  schedule,  containing  the 
particulars  of  the  estate,  whereby  he  made  out  his  qualifica- 
tions ;  and  the  plaintiffs  are  unable  to  obtain  the  said 
schedule."  They  also  state  that  if,  as  he  pretends,  he  has 
since  conveyed  the  estates  of  which  his  cpialification  was  com- 
posed, "  such  conveyance  was  without  consideration,  and  in 
trust  for  himself;  "  and  the  bill  prayed  for  a  discovery. 

The  defendant  demurred  as  to  the  main  statements  recited 
in  the  bill;  Mr.  Mansfield  and  Mr.  Pemberton  claiming,  in 
his  behalf,  that  the  object  of  the  bill  was  idle  curiosity  ;  that 
no  creditor  had  a  right  to  make  these  inquiries. 

During  the  argument,  the  lord  chancellor,  throwing  out 
suggestions,  says  :  "It  seems  admitted  that  they  have  a  right 
to  come  here  for  a  discovery,  where  the  property  is,  in  order 
to  make  their  judgments  available.  That  certainly  will  not 
affect  real  property  had  before  the  judgment  was  obtained,  if 
no  longer  under  such  circumstances  that  the  creditor  can 
follow  it :  but  it  does  not  follow  that  he  cannot,  merely 
because  it  does  not  remain  in  the  ownership  of  the  debtor; 
for  there  may  be  many  cases  in  which  he  might.  There  is  a 
material  charge  in  this  bill,  that  if  there  was  any  conveyance, 
it  was  without  consideration." 

There  is  no  positive  averment  in  the  l)ill  that  there  was  a 
conveyance  made  by  the  defendant;  but  it  alleges  that,  if 
there  was  a  conveyance,  it  was  made  without  consideration  ; 
and  that,  the  lord  chancellor  says,  is  a  material  charge.  He 
then  proceeds  to  say :  "  First,  in  the  common  case  will  a  bill 
for  a  discovery  lie,  with  all  this  particularity,  to  know  every 
estate  he  has  sold  and  disposed  of  for  three  years?  If  so,  he 
may  go  back  forty  years."  He  then  remarks:  "There  is 
difficulty  upon  the  objection,  that  this  would  extend  to  an 
estate  parted  with  forty  years  ago,  without  consideration  ;  and 
I  am  not  quite  clear  that  such  a  bill  must  not  allege  that  at  a 
given  time  the  defendant  was  seized  of  given  lands  (not  simply 
suggesting,  as  a  fishing  bill,  that  at  some  time  or  other  he  had 
some  land);  and  that  he  conveyed  these  lands  away  fraudu- 
lently, to  put  them  out  of  the  reach  of  his  creditor." 


LEWIS    V.    SIIAIXWALI).  2d 

These  remarks  quoted  were  made  by  Lord  I']ldoii  during 
the  argument ;  and  lie  took  the  ease  under  eonsideration,  and 
on  the  20th  of  March  he  overruled,  the  demurrer,  saying: 
"  The  bill  is  met  b}^  a  defense,  admitting  that  it  is  a  proper 
bill ;  and  the  answer  does  not  negative  all  that  is  material  to 
be  answered.  With  respect  to  the  nature  of  the  qualification, 
if  he  had  said  the  property  he  gave  into  the  house  of  commons 
was  not  liable  to  execution,  tne  court  ought  to  be  content  with 
that,  without  requiring  from  him  more  particularity.  IJut 
the  bill  charges  that  the  defendant  delivered  dn  a  schedule  of 
the  particulars  of  the  estates,  whereby  he  made  out  his  quali- 
fication, and  that  he  has  conveyed  them  without  consideration, 
as  evidence  that  he  lias  lands  liable  to  execution  ;  as  they 
may  be  unquestionably.      Upon  that  I  think  he  must  answer." 

In  this  case  of  Mountford  v.  Taylor,  then.  Lord  Chancellor 
Eldon  held  that  the  conveyance  of  his  estate  by  the  defend- 
ant without  consideration  was  fraud  ;  and  that  a  creditor,  as 
well  as  anybody  else,  might  avail  himself  of  it.  In  their  bill 
the  complainants  in  the  case  declare  that  they  do  not  know 
the  character  of  defendant's  estates,  nor  where  they  are  situ- 
ated ;  but  that  he  had,  upon  taking  his  seat  as  a  member  of 
the  house  of  commons,  delivered  to  the  clerk  or  other  officer 
a  verified  schedule  in  which  his  estate  was  set  forth,  which 
schedule  the  plaintiffs  are  unable  to  obtain.  All  of  the  allega- 
tions of  the  bill  with  respect  to  the  defendant's  property  are 
argumentative.  The  complainants  further  alleged,  however, 
that  the  defendant  had  conveyed  his  estate,  without  con- 
sideration, and  in  trust  for  himself,  and  they  were  unable  to 
find  it. 

These  allegations  of  this  creditor's  bill  are  as  indefinite  as 
could  possibly  be ;  yet  the  lord  chancellor  sustains  the  bill; 
and  his  decision  in  that  case,  as  well  as  the  decisions  in  the 
cases  of  Spader  v.  Hadden  and  Donovan  v.  Finn,  referred  to, 
and  numerous  other  cases  cited  in  those  decisions,  sustain  the 
ground  that  where  the  case  presented  is  one  of  eciuitable  juris- 
diction, a  creditor,  as  well  as  anybody  else,  is  entitled  to  the 
aid  of  and  redress  from  the  court. 

In  the  bill  in  the  case  at  bar,  it  is  alleged  that  the  re- 
spondent has  converted  a  certain  portion  of  his  proi)erty,  to 
the  amount  of  $20,000,  into  cash,  which  he  has  concealed, 
with  the  intention  of  carrying  it  out  of  the  United  States; 
that  he  lias  other  property,  to  the  amount  of  §00,000,  which 


24  EqUITY    ]'LKADIN(1. 

he  hiis  so  arranged  and  concealed  that  lie  will  be  enabled  to 
take  it  out  of  the  United  States  ;  and  that  hi.s  express  and 
declared  purpose  in  so  concealing  and  arranging  his  prop- 
erty, and  in  carrying  out  his  intention  of  taking  it  away  with 
him,  is  to  fraudulently  evade  this  complainant's  execution. 

This  bill  has  been  designated  by  the  appellant's  counsel  a 
"fishing  bill."  What  is  meant  by  this  term  is  indicated  by 
Lord  Eldon  in  tho  cited  case  of  Mountford  v.  Taylor,  in  the 
previously  quoted  language — "  not  simply  suggesting  as  a 
fishing  bill,  thitt  at  some  time  or  othei"  he  had  some 'land," 
which  was  a  remark  thrown  out  during  the  argument.  Such 
a  bill  is  one  in  which  there  are  no  allegations  of  a  definite 
or  positive  cluiracter  as  to  the  defendant's  having  at  any  time 
owned  property  which  could  have  been  subject  to  execution 
upon  the  plaintiff's  claim  ;  or  one  asking  for  a  discovery  as 
to  matters  which  cannot  in  any  way  affect  the  rights  of  the 
parties.  It  is  evident,  fi'om  the  way  he  uses  the  expression, 
that  it  is  to  cases  of  that  class  that  Lord  Eldon  refers.  In 
that  case  it  is  alleged  in  the  bill  that  at  a  certain  time  the 
defendant  did  have  some  property,  which  property  he  had 
since  conveyed,  if  conveyed  at  all,  without  consideration,  in 
trust  for  himself;  and,  although  the  complainants  are  unable 
to  state  where  the  property  of  the  defendant  is,  the  lord  chan- 
cellor does  not  consider  the  bill  a  fishing  bill,  but  overrules 
the  demurrer  and  compels  the  defendant  to  answer  with  refer- 
ence to  that  particular  property. 

The  nature  of  a  fishing  bill  is  defined  by  Chancellor  Kent 
(then  a  judge  of  the  court  of  errors  of  New  York)  in  the  case 
of  Newkerk  v.  Willett,  2  N.  Y.  Cases  in  Error,  296,  in  which 
he  says  :  "  The  bill  does  not  state  sufficient  equity  to  entitle 
the  appellants  to  a  discovery.  It  states  generally  that  the 
respondent  had  made  a  demand  upon  one  of  the  appellants, 
as  executrix  of  Peter  Schuyler,  deceased,  and  that,  as  he  did 
not  produce  any  voucher,  she  had  refused  to  pay  him.  It 
states  further  that  he  proposed  an  arbitration,  which  she  re- 
fused, and  that  finally  he  had  brought  a  suit  against  the  ap- 
pellants in  the  supreme  court.  The  bill  states  further  that  the 
appellants  know  nothing  of  the  demand  of  their  own  knowl- 
edge, but  that  they  believe  it  unjust,  because  the  res})ondent 
took  no  measures  to  liquidate  and  settle  it  in  the  life-time  of 
IVter  Schuyler,  and  does  not  now  produce  any  vouchers,  and 
has  been  inconsistent  in  what  he  has  from  time  to  time  said 
as  to  the  nature  and  extent  of  his  demand. 


I,i:\\IS    \-.     SIIAINW.M.I).  Z.) 

"This  is  the  substance  of  the  hill  :  it  aniouiits  to  this:  ihc 
respondent  has  sued  us  at  hiw.  and  we  (h)  not  know  for  what, 
and  therefore  we  ask  for  a  discoviTv  ht'-foi'i-hanih  ahiiout^h  we 
have  reason  to  conclude  he  has  sued  us  u})()n  some  <ii-oundless 
pretense.  iSucli  a  bill  shows  no  equity,  no  rio:ht  to  a  dis- 
covery. It  sets  forth  no  matter  material  to  a  defense  at  law, 
and  which  can  be  proven,  unless  by  the  confession  of  the  o[)- 
posite  party.  It  is,  to  use  Lord  Chancellor  Hardwicke's  ex- 
■  pression,  a  mere  fishing  bill,  seeking  generally  a  discovery  of 
the  gi'ounds  of  the  respondent's  demands,  without  stating  any 
right  to  entitle  them  to  it.  Such  a  bill  may  be  exhibited  by 
any  executor  or  administrator,  and  indeed  by  any  defendant, 
who  is  not  already  in  possession  of  the  plaintiff's  proofs.  But 
the  court  of  chancery  has  wisely  refused  to  sustain  bills  for 
discovery  in  such  latitude,  and  unless  the  party  calling  for  a 
discovery  will  state  some  matter  of  fact  material  to  his  defense, 
or  which  he  wishes  to  substantiate  by  the  confession  of  the 
defendant,  the  court  will  not  enforce  a  discovery." 

It  is  with  this  same  view,  as  I  understand  it.  that  Lord 
Eldon,  in  the  case  before  cited,  alludes  .to  a  discovery  of 
matters  running  back  forty  years — matters  which  cannot,  by 
an}'  possibility,  atfect  the  rights  of  the  parties;  and  a  bill  ask- 
ing for  such  a  discovery  is  a  fishing  bill.  But  as  to  a  bill  for 
a  discovery  of  matters  of  such  character  and  date  that  they 
can  be  immediately  connected  with  the  complainant's  cause, 
and  which  matters  he  could  not  discover  or  ascertain  w'ithout 
the  aid  of  the  court,  the  bill  also  alleging  that,  since  the 
accruing  of  complainant's  right,  the  respondent  has  conveyed 
away  his  estates,  without  consideration  and  in  trust  for  him- 
self, such  a  bill  is  not  a  fishing  bill,  because  it  sets  forth 
matters  material  to  the  cause.  A  conveyance  of  the  character 
alleged  would  be  a  fraud  in  law,  and  the  complainant  is 
entitled  to  a  discovery. 

In  the  present  case,  the  charge  of  fraud  is  direct.  In  his 
bill,  after  setting  forth  that  he  has  recovered  judgment 
against  the  respondent  for  a  large  sum  of  money;  that  execu- 
tion has  issued,  and  a  return  of  inilla  bona  has  been  made 
thereon,  the  complainant  avers  that  a  short  time  before  the 
rendition  of  judgment,  and  during  the  pendency  of  the  action, 
the  respondent  disposed  of,  and  converted  into  cash,  real 
property  to  the  amount  of  $20,000;  that  since  the  rendition  of 
the  judgment  he  has  secretly  ti'ansferred   a  large  part   of  his 


26  EQUITY    PLEADING. 

property,  and  has  secreted  the  remainder;  that  he  has  property 
to  the  vakie  of  $90,000,  which  the  coniphiinant  has  been 
unable  to  reach  by  execution;  that  he  intends  and  is  about  to 
convert  into  cash  all  his  property,  and  to  depart,  taking  it 
with  him,  beyond  the  jurisdiction  of  the  court;  and  that  all 
these  acts  and  stejis  have  been  committed,  taken  and  proposed 
with  the  declared  purpose  of  so  "fixing"  his  property  that  it 
cannot  be  seized  to  satisfy  the  judgment,  and  to  defraud  the 
complainant  of  the  money  due  under  it. 

Those  matters  are  material.  Here  is  set  forth  the  fraud 
which  the  com})lainant  is  seeking  to  unveil  ;  and,  if  the 
alleged  state  of  facts  exists,  he  is  entitled  to  apply  the  funds 
of  the  res[)ondent,  wlierever  the}'  are,  to  the  satisfaction  of  the 
judgment.  The  fact  that  the  complainant  is  unable  to  de- 
scribe and  locate  the  property  and  funds  of  the  respondent 
ought  not  to  make  it  impossible  to  bring  his  cause  within  the 
jurisdiction  of  a  court  of  equity,  for  under  existing  laws  it  is 
possible  for  a  party  to  hold  jjropert}'  in  such  a  manner  that 
only  by  a  discovery  can  another  be  enabled  to  locate  or  de- 
scril)e  it.  If  in  a.  case  of  this  kind  a  complainant  were  not 
entitled  to  a  discovery,  it  would  be  possible  for  a  debtor  to 
conceal  his  property,  or  to  convert  it  into  money  and  i)ut  it 
in  his  pocket,  and  so  evade  a  judgment.  The  arm  of  the 
court  of  equity  would  certainly  be  very  short  if  it  could  not 
reach  the  respondent  in  such  a  case,  although  the  complain- 
ant would  be  unable  to  des(^'ibe  the  pi'opert}'  or  identify  the 
money.  In  the  nature  of  things  it  is  impossible  to  identify 
the  money.  But  if  this  respondent  has  in  his  possession  the 
$20,000  which  he  is  alleged  to  have  received  for  that  portion 
of  his  property  which  he  has  sold,  and  other  property  as  well, 
he  is  bound  to  discover  it,  and  yield  it  up,  that  it  may  be 
applied  to  the  satisfaction  of  the  judgment.  If,  as  is  averred 
in  the  bill,  the  respondent  in  this  case  has  converted  a  portion 
of  his  property  into  money,  and  intends  to  carry  that  money 
and  his  other  property  beyond  the  jurisdiction  of  the  court, 
then  this  bill  is  sufficient. 

Another  point  is  made  in  this  case,  with  reference  to  the 
issuing  of  a  writ  of  ne  exeat  repuhlica.  Plespondent's  counsel 
contends  that  the  court  has  erred  in  directing  in  its  decree 
that  the  writ  should  issue;  that  such  a  writ  is  only  a  pro- 
visional remedy,  the  riglit  to  which  expires  upon  the  deter- 
mination of  the  suit  and  the  entry  of  judgment. 


LEWIS    V.    SIIAIXWALI).  27 

The  very  object  of  this  provisional  I'diiedy  is  to  si'curc  tlie 
presence  of  tlie  party  in  order  tliat  the  jn(l<,nnent  may  he 
executed — in  order  that,  he  may  not  b'e  enabled  to  evade  it. 
This  writ  is  not  discharged  any  more  than  an  attacliment  is 
discharged  upon  the  entry  of  judoinent.  A  writ  of  attachment 
is  discharged  upon  the  satisiaetion  of  the  judgment,  or  upon 
giving  security  ;  and  the  writ  of  ne  exeat  should  contiinie  in 
force  until  the  judgment  is  satisfied,  or  until  the  writ  is  dis- 
solved, or  })roper  secruritv  given.  Mitehel  r.  launch,  2  Paige, 
606;  S.  C,  22  Am.  Dec.,' 669;  McXamara  r.  l^wver,  32  Am. 
Dec,  631. 

It  is  claimed  by  the  respondent's  counsel  that  that  ])orli()n 
of  the  decree  which  directs  that  this  writ  shall  issue  is  arbi- 
trary ;  that  no  limit  is  placed  upon  the  length  of  time  it  shall 
continue  in  force.  I  ))resume  the  court  will  have  power  to 
control  that  matter.  The  decree  may  possibly  be  too  broad  in 
that  regard  ;  and,  if  counsel  desire  it,  it  can  be  so  modified  as 
to  obviate  any  objection  upon  that  ground.  That  this  writ 
may  be  issued  even  after  judgment  is  established.  See  jMoore 
u  Hudson,  6  Mad.,  218  ;  Elliott  v.  Sinclair,  Jac,  545  ;  Collin- 
son  V.  Wattleworth,  18  Yes.,  353  ;  Russell  v.  Ashby,  5  Ves.,  96. 

According  to  Daniell's  Chancer}'  Practice,  and  many  autho- 
rities, a  praver  in  the  bill  for  a  ne  exeat  is  not  necessarv. 
3  Dan.  Ch.>r.,  1936;  Durham  v.  Jackson,  1  Paige,  629; 
Gilbert  v.  Colt,  14  Am.  Dec,  561,  note.  It  is  sufficient  if  the 
facts  alleged  in  the  bill,  and  established,  show  a  proper  case 
for  the  writ,  and  it  may  be  granted  in  the  decree  under  the 
prayer  for  general  relief.  Or  the  facts  may  be  shown,  and  the 
■writ  applied  for  upon  a  petition  {)resented  in  the  case  either 
before  or  after  judgment  or  decree.  The  limitation  of  equity 
rule  21  onlv  applies  where  the  writ  is  asked  for  "  pending  the 
suit." 

'"And  it  is  further  ordered,  adjudged,  and  decreed,  that  the 
writ  of  7?c  exeat  repuhlka  of  the  United  States  of  America  issue 
out  of  and  under  the  seal  of  this  court,  to  restrain  the  said 
Harris  Lewis  from  departing  out  of  the  jurisdiction  of  this 
court."  That  is  the  form  of  that  portion  of  the  decree  relat- 
ing to  this  matter.  I  think  it  would  have  been  better,  and  it 
certaiidv  would  have  avoided  criticism,  if  to  this  had  been 
added — "  until  the  satisfaction  of  the  decree,  or  the  further 
order  of  the  court." 

Respondent's  counsel  cites  a  case  in  2  Wash.,  to  show  that 


28  EQUITY    l'LEADIN(;. 

a  district  court  has  no  authority  to  issue  a,  writ  of  ne  exeat. 
In  that  case,  however,  the  writ  was  issued  by  the  judge,  and 
not  by  the  court.  That  case  arose  at  a  time  when  the  juris- 
diction of  the  district  court  was  limited,  and  did  not  cover  a 
case  of  the  cliaracter  of  that  now  under  consideration  at  alL 
There  is  a  distinction  between  the  judge  and  the  court,  a  dis- 
tinction recognized  in  tlie  Revised  Statutes.  Section  717 
reads : 

"  Writs  of  ne  exeat  may  be  granted  by  any  justice  of  the 
supreme  court,  in  cases  where  they  might  be  granted  by  the 
supreme  court;  and  by  any  circuit  justice  or  circuit  judge,  in 
cases  where  they  might  be  granted  by  the  circuit  court  of 
which  he  is  a  judge.  But  no  writ  of  ne  exeat  shall  be  granted 
unless  .  .  .  satisfactory  proof  is  made  to  the  court  or  judge 
granting  the  same,  that  the  defendant  designs  quickly  to 
depart  from  the  United  States." 

By  the  Revised  Statutes,  section  716,  it  is  provided  that 
"  the  supreme  court  and  the  circuit  and  district  courts  shall 
have  power  to  issue  writs  of  scire  facias.  They  shall  also  have 
power  to  issue  all  writs  not  specifically  provided  for  by 
statute,  which  may  be  necessary  for  the  exercise  of  their 
respective  jurisdictions,  and  agreeable  to  the  usages  and  prin- 
ciples of  law." 

The  wiit  of  iie  e.reat  is  one  of  the  writs  necessary  to  the 
exercise  of  the  present  jurisdiction  of  the  district  court.  The 
jurisdiction  of  that  court  has  been  enlarged  since  the  adoption 
of  these  statutes,  and  since  the  date  of  the  decision  last  referred 
to.  In  cases  of  the  character  of  the  one  at  bar,  it  has  now 
concurrent  jurisdiction  with  the  circuit  court.  The  authority 
of  the  district  court  to  issue  this  writ  is  therefore  unques- 
tionable. 

The  decree  of  the  district  court  must  be  affirmed,  except 
that,  if  the  appellant  so  elects,  it  may  be  modified  in  the 
respect  indicated. 

UNITED  STATES  v.  PARROTT. 

(Circuit  Court  for  California:  1  McAllister,  447-4(36.     1859.) 

Opinion  by  McAllister,  J. 

Statement  of  Facts. — In  this  case  a  bill  was  filed  by  the 
district  attorney  of  the  United  States,  in  behalf  of  the  govern- 
ment. Among  other  matters,  it  alleged  that  the  title  to  the 
premises  in  dispute  was  in  the  United  States;  that  defendants 


UNITED    STATKS    V.     TAItKOTT.  29 

had  taken  tortious  possession  ol'tlieni;  that  tliev  eonsisted  of  a 
mine  of  great  value;  that  del"en(hints  had  extracted  minerals 
therefrom  to  the  value  of  §8,0U0,0U();  that  they  were  extract- 
ing therefrom  minerals  to  the  annual  amount  in  value  of 
$1,000,000,  and  threaten  to  continue  the  waste;  that  tiiey 
were  unable  to  respond  for  the  damages  which  had  already 
accrued  and  which  would  still  accrue;  that  the  defendants,  in 
the  name  of  one  Andres  Castillero,  had  presented  a  petition  to 
the  "  Board  of  Land  Commissioners,"  under  the  act  of  con- 
gress approved  March  3,  ISol,  which  was  pending  on  appeal 
from  the  decision  of  the  connnissioners,  before  the  district 
court  of  the  United  States  for  the  northern  district  of  the  state 
of  California,  the  object  of  which  petition  was  to  obtain  from 
the  United  States  a  confirmation  of  the  title  which  they  pre- 
tended to  hold  from  the  INJexican  government  ;  that  the  title 
under  which  they  held  possession  was  forged,  ante-dated  and 
fabricated  in  pursuance  of  a  conspiracy  to  cheat  and  defraud 
the  Unit(.'d  States  of  their  rights  to  the  said  pro[»erty.  The 
bill  concluded  b}^  cliarging  that  defendants  were  destroying 
the  substance  of  the  mine,  and  prayed  that  an  injunction 
might  issue  to  stay  the  waste  defendants  were  committing, 
and  threatened  to  commit,  until  the  determination  of  their 
alleged  title  by  the  tribunals  to  which  the  adjudication  of  it 
was  confided,  and  that  a  receiver  be  a})pointed.  To  this  bill 
an  answer  was  filed,  and  on  the  bill  and  answer  the  motion 
for  injunction  was  argued  and  decided.  The  charges  in  the 
bill  specifically  made,  of  forgery  and  ante-dating  of  the  docu- 
mentary title  under  which  defendants  held,  were  not  directly 
and  fully  denied;  all  that  was  averred  was  the  ignorance  of 
defendants  of  their  existence,  and  their  belief  of  the  genuine- 
ness of  the  documents.  In  relation  to  the  charge  made  in  the 
bill  of  a  conspiracy  to  cheat  and  defraud  the  United  States, 
after  admitting  the  genuineness  of  all  the  letters  save  one, 
appended  to  the  bill,  the  answer,  in  response  to  the  allegation 
of  conspiracy,  denies  "  that  the  said  letters  and  communica- 
tions were  written  b}^  the  said  parties  with  intent  to  commit  a 
fraud  or  in  furtherance  of  a  conspiracy  to  fabricate  a  title,  as 
charged  in  said  bill,  except  so  far  as  the  said  intention  ap- 
pears from  said  letters  on  the  part  of  the  said  James  Alex- 
ander Forbes."  So  far,  then,  as  the  intention  of  conspiracy 
appears  from  the  letters,  it  was  admitted  that  "  Forbes,"  under 
whom  two  of  the  defendants  claimed,  may  be  guilty.     Jn  view 


30  EQUITY    PLEADING. 

of  the  insufficiency  of  the  denials  in  the  answer,  the  irrepar- 
ahlo  character  of  the  mischief  comphiined  of,  and  the  j97-i7»a 
facie  title  of  the  complainants  exhibited  by  the  bill,  answer 
and  exhibits,  the  court  granted  the  injunction  and  refused  the 
appointment  of  a  receiver. 

The  well-settled  rules  of  chancery  require  that  full,  direct 
and  positive  denials  should  have  been  given  to  the  charges  of 
fraud,  forgery,  ante-dating  and  conspiracy.  This  doctrine  is 
enunciated  by  uniform  decisions.  Poor  v.  Carleton,  3  Sumn., 
77;  Clark  v.  Van  Riemsdyk,  9  Cranch,  160;  Everly  v.  Rice, 
3  Green,  Ch.,  553  ;  Roberts  v.  Anderson,  2  Johns.  Ch.,  202; 
Apthorpe  v.  Comstock,  1  Hopk.,  143  ;  Ward  v.  Van  Bokkelen, 
1  Paige,  100.  Independently  of  authority,  reason  and  com- 
mon sense  affirm  the  propriety  of  the  rule.  The  facts  charged 
in  the  bill  were  forgery  and  ante-dating.  These  were  not 
denied,  but  the  ignorance  of  the  defendants  of  their  existence 
and  their  belief  in  the  non-existence  of  them  averred.  In 
Roberts  v.  Anderson,  2  Johns.  Ch.,  202,  Chancellor  Kent  has 
well  said:  "the  defendants  may  have  given  all  the  denial  in 
their  power ;  but  the  frand  may  exist  notwithstanding,  and 
consistently  with  their  ignorance  or  the  sincerity  of  their 
belief." 

It  has  been  suggested  that  the  allegations  of  the  forgery 
and  ante-dating  not  having  been  sworn  to  from  personal 
knowledge,  that  circumstance  should  modif}^  the  rule.  No 
authority  has,  nor,  it  is  believed,  can  be  invoked  to  sustain  a 
proposition  so  novel.  The  allegations  of  a  bill  properly  made, 
which  so  clearly  charge  the  fraud  as  to  make  it  perfectly  in- 
telligible to  the  defendants,  entitle  the  complainant  to  such  a 
denial  as  is  prescribed  by  the  rules  of  chancery.  If  such  an 
one  is  not  put  in,  the  defendant  cannot  arrest  the  issue  of  an 
injunction  on  the  ground  that  he  has  filed  an  answer  denying 
the  equity  of  the  bill.  Relax  that  rule,  and  what  might  not 
be  the  injurious  results? 

There  are  many  cases  in  which  rights  may  be  violated  under 
circumstances  which  may  warrant  an  honest  belief  that  atro- 
cious fraud  had  been  perpetrated  ;  but  those  circumstances 
may  have  transpired  at  a  distance  from  the  party,  and  he  un- 
able to  swear  to  them  from  personal  knowledge.  Can  it  be 
contended  with  any  reason,  that  when  the  party  comes  into  a 
court  of  equity,  that  tribunal  will  award  to  an  answer  whose 
denials  of  forgery  and  ante-dating  are  made  "upon  informa- 


lNITi;i>    STATES    V.     TAKKOTT.  31 

tion  and  belief,"  the  cliai'aeter  which  tiie  hiw  aiuuwes  to  an 
answer  whore  the  denial  of"  the  iVaud  is  on  jiersonal  ivnowl- 
edge?  The  allegations  of  a  bill  are  niwc  pleacHngs  ;  the  aver- 
ments in  an  answer  responsive  to  them  are  regarded  as  evideneo 
eqnivalent  to  two  disinterested  Avitnesses,  or  one  witness  and 
strong  corroborative  circumstances. 

To  consider  that  the  denials  of  an  answer  on  "information 
and  belief"  are  to  be  deemed  sutlicient  because  the  allegations 
of  the  pleadings  are  not  sworn  to  from  personal  kn(jwledge  is 
simi)ly  to  confound  the  distinction  wdiich  exists  between 
pleadings  and  evidence.  So  to  modify  the  rule  would  exclude 
any  ap})lication  by  the  way  of  information,  through  its  oiticer, 
b}^  a  government.  To  every  such  application  an  answer  on 
"information  and  belief"  would  be  sufficient,  for  personal 
knowledge  of  facts  is  not  to  be  expected  from  the  government. 
Deeming  the  rule  applicable  to  this,  as  it  is  to  all  similar 
cases,  the  court  considered  that  the  denials  of  the  fraud,  ante- 
dating and  forgery  were  not  such  as  ought  to  arrest  the  issue 
of  an  injunction  ;  that  the  case  was  one  of  irremediable  mis- 
chief; and  lastly,  that  the  j^lcadings  and  exliil)its  in  the  case 
showed  a  probable  foundation  to  entitle  the  complainants  to 
be  protected  against  that  irreparable  mischief,  until  the  deter- 
mination of  the  question  of  title  in  the  tribunal  in  wdiich  it 
was  pending, — this  court,  without  pausing  to  dwell  upon  tlie 
title  set  up  by  defendants,  independently  of  any  alleged 
forgery  of  it,  directed  the  injunction  to  issue,  but  declined  for 
the  present  the  appointment  of  a  receiver. 

The  injunction  exists;  the  issue  of  title  is  still  })ending  in 
the  district  court ;  there  is  no  suggestion  of  any  fact  that  has 
arisen  since  the  decision  of  the  court  to  change  the  relative 
attitude  of  the  parties  from  what  it  was  at  that  time,  nor  to 
alter  the  jurisdiction  of  the  court  in  an}'  way  over  the  case. 
That  jurisdiction  was  distinctly  enunciated  to  be  confined  to 
granting  the  prayer  of  the  bill,  the  court  disclaiming  at  the 
same  time  all  power  to  decide  upon  title,  either  on  a  motion 
to  dissolve  an  injunction,  or  on  a  final  hearing. 

In  this  condition  of  things,  an  application  is  made  to  this 
court  to  designate  commissioners  to  take  testimony  abroad. 
The  facts  expected  to  be  proved  go  mostly  to  the  establishment 
of  the  title  of  the  defendants,  and  the  genuineness  of  the 
documents  by  which  they  propose  to  sustain  that  title.  The 
avowed  object  of  invoking  that  testimony  is  "  to  offer  it  in 


32  EQUITY    PLEADING. 

evidence  on  the  trial  of  this  case,  or  on  a  motion  to  dissolve 
the  injunction  which  has  been  granted  against  the  defendants 
therein,  or  for  any  other  purpose  in  said  cause  to  which  such 
evidence  shall  be  applicable." 

The  grounds  taken  in  support  of  this  motion  are:  1st.  That 
it  is  matter  of  right,  grantable  of  course.  2d.  That  the 
materiaUty  of  the  testimony  invoked,  whether  there  is  to  be 
any  hearing  at  all  in  the  case,  whether  the  testimony  would 
be  hereafter  admissible,  are  all  matters  to  be  considered  when 
the  evidence  is  offered,  not  by  anticipation.  If  the  first  prop- 
osition be  correct,  the  second  follows  as  a  corollary  from  it. 

The  first  ground  which  claims  the  action  of  this  court  as  a 
matter  of  right,  and  the  granting  of  the  application  as  matter 
of  course,  presupposes  the  act  of  the  court  to  be  merely  minis 
terial.  If  this  be  so,  it  has  no  right  to  investigate  whether 
the  testimony  be  material,  or  whether  it  can  be  used  when 
obtained.  All  it  has  to  do  is  to  perform  the  mere  ministerial 
duty  which  it  is  commanded  to  discharge,  and  the  present  ap- 
plication is  needless.  Whence  the  necessity  of  naming  Avit- 
nesses,  the  facts  they  are  expected  to  prove,  and  the  purpose 
for  which  their  testimony  is  invoked,  if  this  motion  is  grant- 
able  as  a  matter  of  course?  Both  these  grounds  will  be  dis- 
cussed together,  for  each  is  involved  necessarily  in  the  other  ; 
for  if  the  granting  a  '' dedimus  potestatem^^  is  matter  of  course, 
the  court  has  nothing  to  do  with  the  materiality  of  the  testi- 
mony, the  use  to  be  made  of  it,  or  any  other  matter  connected 
with  it.  If,  on  the  contrary,  the  power  of  this  court  to  grant 
this  application  depends  upon  the  materiality  of  the  testimony, 
and  the  purposes  for  which  it  is  invoked,  it  is  evident  that 
neither  ground  can  be  tenable. 

To  sustain  the  proposition  that  the  granting  of  the  present 
application  is  matter  of  right,  reference  is  made  to  the  sixty- 
seventh  rule  governing  equity  practice,  as  amended  in  1854 
by  the  supreme  court  of  the  United  States,  and  to  the  fifth 
section  of  the  act  of  congress  of  22d  August,  1843. 

By  the  sixty-seventh  rule  it  is  provided  that,  after  a  cause 
is  at  issue,  commissions  to  take  testimony  may  be  taken  out  in 
vacation,  as  well  as  in  term  time,  upon  interrogatories  filed 
by  the  party  taking  out  the  same  in  the  clerk's  office,  ten 
days'  notice  being  given  to  the  adverse  party  to  file  cross- 
interrogatories  before  the  issuing  of  the  commission,  etc. 
And  the  rule  provides  that,  in  all   cases,  the  commissioners 


UMTKI)    STA'IMIS    V.     I'AliltO'ir.  33 

shall  be  iiainod  by  the  court,  oi'  a  Jiidm'  llicicof.  'I'lic  aiiiciKJ- 
nient  to  this  rule,  to  bo  Ibuiul  in  17  Howard,  |».  vii,  declares 
tliat  the  presiding  judge  of  any  court  -exercising  jurisdiction, 
either  in  term  time  or  vacation,  may  vest  in  the  clerk  of  said 
court  general  power  to  name  commissioners  to  take  testimony 
in  like  manner  that  the  court  or  judge  can  now  do  i>y  the 
sixty-seventh  rule. 

The  presiding  judge  of  this  court  has  never  vested  in  the 
clerk  any  such  power.  We  must  look,  therefore,  to  the  former 
rule,  the  construction  of  which  will  necessarily  determine  the 
extent  of  any  power  which  the  judge  could  have  delegated  to 
the  clerk  ;  for  the  judge  could  not  have  delegated  any  power 
which  he  did  not  himself  possess,  and  which,  by  the  requisi- 
tions of  the  amended  rule,  was  to  be  exercised  by  the  clerk  in 
the  same  manner  as  it  could  be  by  the  judge.  The  fifth  sec- 
tion of  the  act  of  22d  August,  1843  (5  Statutes  at  Largo,  517), 
provides  that  the  district  courts  as  courts  of  admiralty,  and 
the  circuit  courts  as  courts  of  equity,  shall  be  deemed  always 
o[)en  for  certain  purposes,  and  that  it  will  be  competent  for 
any  judge  at  chambers,  and  in  vacation  as  well  as  in  term 
time,  to  award  all  such  process,  commissions,  rules  and  pro- 
ceedings, etc.,  ivlienever  the  same  are  not  yrantahle  of  course, 
according  to  the  rules  and  j)ractice  of  the  court.  It  is  evident, 
then,  from  the  act,  that  all  commissions  are  not  granted  of 
course.  Looking  through  the  equity  rules,  it  will  be  found 
that  a  distinction  is  j^reserved  between  special  motions  and 
those  grantable  of  course. 

What  constitutes  a  motion  grantable  of  course,  and  a 
special  one,  is  to  be  inferred  from  the  llfth  rule  of  equity. 
The  distinction  is,  that  a  motion  which  requires  an  allowan(!e 
from  the  judge,  or  a  notice  to  the  opposite  party,  is  a  special 
one  ;  all  others  are  grantable  of  course.  This  motion  asks  for 
tlie  interposition  of  the  judge  to  nominate  commi.ssioners, 
and  requires  that  previous  notice  of  ten  days  should  be  given. 

In  addition  to  foregoing  rules  and  act  of  congress,  reference 
has  been  made  to  Daniel's  Ch.  Practice,  1099,  where  that 
author  discusses  the  question  what  facts  are  necessary  to  be 
inserted  in  the  affidavit  on  which  the  application  for  a  com- 
mission is  founded,  and  shows  it  is,  ii-om  the  authorities,  un- 
certain whether  the  names  of  the  witnesses,  or  a  statement  of 
the  points  to  which  it  is  intended  to  examine  them,  are  neces- 
sarily to  be  given  in  the  affidavit.  In  relation  to  the  iu\mes  of 
3 


34  EQUITY    PLEADING. 

witnesses,  he  states  that,  according  to  the  books  of  practice, 
all  that  need  be  stated  in  the  afjidavit  is  that  the  testimony  of 
■some  of  the  witnesses  whom  it  is  proposed  to  examine  is 
material,  and  that  the  party  cannot  proceed  to  trial  safely 
without  their  testimony.  He  further  states,  when  the  appli- 
cation is  made  in  an  early  stage  of  the  case,  the  court  seldom 
denies  the  application  for  a  commission  ;  it  will,  however, 
exercise  a  discretion  upon  this  subject,  and  he  gives  various 
instances  wh.ere  such  applications  were  refused. 

As  to  the  necessity  of  stating  the  facts  to  be  proved,  or  the 
names  of  the  witnesses  in  the  affidavit,  the  conclusion  to  which 
he  comes,  after  a  review  of  the  authorities,  is  that,  in  order  to 
■dispense  with  the  necessity  of  stating  them  in  the  affidavit,  the 
names  of  the  witnesses,  and  the  object  to  which  their  testi- 
mony is  required,  and  the  necessity  for  examining  witnesses 
abroad,  must  be  evident  from  iha  pleadings,  if  not  made  so  by 
the  affidavit;  and  he  distinctly  states,  that  the  reason  why 
Lord  Eldon,  in  the  case  of  Montizibel  v.  Machada,  did  not 
require  those  matters  to  be  stated  in  the  affidavit,  was,  that 
his  lordshij)  had  looked  into  the  case,  as  made  by  the  plead- 
ings, in  order  to  see  whether  there  were  facts  to  which  it  was 
proper  to  examine  the  witnesses.  The  same  author  tells  us, 
that  it  must  appear  that  the  focts  relied  on  as  to  which  evi- 
dence is  sought  are  such  as  can  be  made  use  of,  either  in  sup- 
port of  the  action  or  in  defense  of  it.  Daniel's  Ch.  Practice, 
1096. 

The  foregoing  authorities  (all  that  have  been  cited  by 
counsel)  do  not  sustain  the  })roposition  asserted.  There  are 
but  two  sources  of  power  to  which  this  court  can  look  for  its 
action  to  obtain  the  testimony  of  absent  witnesses.  The  first 
is  by  the  issue  of  letters  rogatory.  There  is  no  instance  on 
record  of  these  having  been  issued  as  a  matter  of  course,  nor 
is  the  present  an  ap[)lication  for  such.  The  second  source  is 
statutory  ;  nor  can  this  court  receive  any  aid,  save  by  implica- 
tion, from  that  source. 

The  two  acts  of  congress  upon  this  subject  are  those  of  24th 
September,  1789,  and  24th  January,  1827.  The  former,  after 
describing  minutely  the  mode  of  taking  depositions  de  bene 
esse,  limits  the  execution  of  commissions  to  an  American 
magistrate.  The  latter  act  (1827)  is  limited  in  its  terms  to 
the  execution  of  commissions  within  the  limits  of  the  United 
States  and  their  territories.     It  would  be  a  strange  state  of 


UNITED    STATES    V.     I'AKROTT.  35 

things,  that,  without  any  exj)rcss  legislation  as  to  the  mode 
and  manner  of  issuing  connnissions,  parties  wouhl  have  the 
right  to  consider  the  issue  of  a  commission  to  take  testimony 
abroad  grantable  of  course,  and  the  nomination  of  commis- 
sioners a  mere  ministerial  act  by  the  judge.  The  only  source 
of  power  to  which  this  court  can  look  is  the  thirtieth  section 
of  the  judiciary  act  of  1789  (1  Statutes  U.  S.,  90) ;  and  from 
it  derive  that  power  by  implication.  That  section  provides 
"  that  nothing  herein  contained  shall  be  construed  to  prevent 
any  court  of  the  United  States  from  granting  a  dcdinius  pofefi- 
tateni  to  take  depositions  according  to  connnon  usage  when  it 
may  be  necessary  to  prevent  a  failure  or  delay  of  justice." 
This  act,  like  all  laws  made  in  derogation  of  the  common  law, 
should  be  strictly  construed. 

No  commission  should  be  issued  under  it,  unless  necessary 
to  prevent  a  failure  or  delay  of  justice,  or  in  accordance  with 
common  usage.  What  is  meant  by  common  usage,  when  an 
application  is  made  to  a  court  of  equity  for  a  dedimus  potestatem 
to  authorize  the  taking  of  testimou}'  abroad?  It  has  been 
contended,  on  this  motion,  that  by  the  terms  "  common 
usage"  in  tlie  statute  of  1789,  congress  must  have  meant  the 
practice  of  the  courts  of  the  states  ;  and  the  case  of  Buddicum 
V.  Kirk,  3  Cranch,  293,  has  been  cited  to  sustain  this  propo- 
sition. 

It  is  true  that  Conkling,  in  his  treatise  (p.  421),  states  that 
the  above  case  enunciates  a  proposition  which  he  embodies  in 
these  words :  "  The  circumstances  under  which  a  commission 
will  be  issued,  and  the  mode  of  obtaining,  executing  and  re- 
turning it,  in  the  several  districts,  depend  upon  the  practice 
and  laws  of  the  respective  states,  and  the  rules  of  the  several 
courts  of  the  United  States."  If  this  text-writer  intended  to 
say  that  the  rules  of  chancery,  in  relation  to  taking  testimony 
abroad,  were  to  be  in  accordance  with  the  practice  and  laws  of 
the  different  states,  he  asserts  a  doctrine  totally  indefensible. 
If  such  was  his  intention,  his  ingenuity  has  detected  in  that 
case  what  has  escaped  the  sagacity  of  Mr.  Justice  Curtis  ;  for 
the  latter,  in  his  head-notes  (1  Curtis,  584),  has  failed  to  })er- 
ceive,  for  he  does  not  notice,  any  such  doctrine.  The  case  of 
Buddicum  v.  Kii-k  was  a  common  law  case,  and  the  question 
arose  whether  service  of  a  notice  to  take  a  deposition  upon  an 
attorney  at  law  was  equivalent  to  one  upon  an  attorney  in 
fact?     As  the  law  of  Virginia  required  the  notice  to  be  made 


3f)  EQUITY    TLEADING. 

on  the  attorney  in  fact,  the  court,  very  properly,  under  the 
thirty-fourth  section  of  the  judiciary  act,  adopted  the  law  of 
the  state  in  a  common  law  case.  That  case  is  no  authority  to 
sustain  the  proposition  that  the  practice  of  this  court,  acting 
as  a  court  of  equity,  is  to  be  controlled  b}'  the  practice  of  the 
state  courts,  whatever  that  may  be.  It  would  make  the 
chancery  jurisdiction  and  practice  of  the  federal  courts  sub- 
servient to  the  practice  of  the  courts  of  every  state  in  which 
the  federal  court  might  sit ;  whereas,  it  must  be  uniform  in 
all  the  states.  In  Gaines  v.  Relf,  15  Pet.,  9,  this  question  is 
fully  discussed,  and  even  in  Louisiana,  where  there  is  no 
equity  state  court,  it  was  decided  that  chancery  practice  pre- 
vails in  the  circuit  court  of  that  state,  and  must  prevail  in 
accordance  with  the  rules  prescribed  by  the  supreme  court, 
and  where  they  are  silent,  according  to  the  practice  of  the 
high  court  of  chancery. 

The  question  then  arises,  whether  an  application  to  a  court 
of  equity  to  take  testimony  abroad  is  grantable  of  course,  and 
all  considei'ations  of  the  materiality  of  the  testimony  invoked, 
and  the  purposes  for  which  it  is  sought,  ai'e  to  be  postponed 
until  the  testimony  is  offered  as  evidence.  Authorities  have 
been  cited  to  sustain  the  position  that  a  party  has  a  right  to 
move  to  dissolve  an  injunction,  and  even  to  renew  such 
motion.  This  is  doubtless  true ;  but  the  right  to  make  any 
number  of  such  motions  does  not  alter  the  nature  of  the 
evidence  proposed  to  be  offered  to  sustain  them,  or  fix  the 
propriety  of  granting  the  application  to  take  testimony  abroad. 
These  are  to  be  controlled  by  the  usages  and  rules  of  a  court 
of  chancery. 

The  proviso  to  the  thirtieth  section  of  the  judiciary  act  of 
1789  (1  Statutes  U.  S.,  90)  gives  the  power  to  issue  a  dedimus 
potestatem  according  to  "common  usage."  When  an  applica- 
tion for  such  process  is  made  to  a  court  of  equity,  that  com- 
mon usage  is  to  be  ascertained  by  reference  to  the  usages  of 
chancery.  One  of  the  fundamental  principles  which  controls 
that  court  is,  that  as  its  object  in  compelling  a  discovery,  or 
granting  an  application  for  a  commission  to  take  testimony 
abroad,  is  to  enable  itself,  or  some  other  court,  to  decide  on  a 
matter  in  dispute  between  the  parties,  the  discovery  or  testi- 
mony sought  must  be  material  to  the  relief  prayed  for,  or 
material  to  be  used  in  some  other  suit  actually  instituted  or 
proved  to  be  capable  of  being  instituted  in  another  forum. 


UNITED    STATES    V.     I'AltKoTT.  15/ 

If,  therefore,  the  party  does  not  sliow  the  testimony  he  seeks 
is  material  to  enahle  him  to  siiji])ort  or  defend  a  suit,  he  shows 
no  title  to  what  he  seeks;  and,  eonseijUently,  if  he  seeks  it  by 
bill  a  demurrer  will  lie;  if  he  seeks  it  by  motion,  he  is  not 
entitled  to  it.  8uch  is  the  doetrine  enunciated  by  Lord 
Redesdale  (Mitford's  Ch.  PL,  102). 

It  is  illu-strated  by  decided  cases.  Daniel,  in  his  treatise, 
cites  from  the  case  of  iShedden  v.  Baring,  3  Anst.,  JSSO,  to 
sustain  the  proposition  that  a  bill  for  discovery  or  a  commis- 
sion to  take  testimony  abroad  must  not  only  show  that  the 
action  has  been  brought,  but  it  must  show  that  the  facts  relied 
on  as  to  which  evidence  is  sought  are  such  as  can  be  made 
use  of,  either  in  su])port  of  the  action  or  in  defense  of  it ; 
otherwise,  the  bill  will  not  lie.  In  England,  the  usualmode 
is  to  apply  b}'  a  bill  for  a  discovery  and  a  commission  to  take 
testimony  abroad,  or  to  take  testimony  abroad  only.  "  A  bill 
of  this  kind  [says  Daniel],  for  the  mere  purpose  of  examining 
witnesses  abroad,  is  subject  to  nearly  the  same  rules  as  bills 
for  discovery  in  aid  of  an  action  at  law."  Daniel,  1096. 
There  can  be  no  stronger  proof  that  an  api)lication  to  take 
testimony  abroad  is  not  matter  of  course,  but  is  an  ap})lication 
to  the  judical  discretion,  than  the  fact  that  the  ordinar}''  course 
in  England  is  to  apply  by  bill  in  equity  to  obtain  it.  In 
Lousada  v.  Templar,  2  Russ.,  561-564,  Lord  Eldon  says,  "  that 
though  the  circumstances  were  such  that,  even  if  the  jdaintiff 
at  law  had  obtained  a  verdict,  he  could  not  allow  him  to  receive 
the  money  until  it  was  ascertained  what  had  been  done  in 
Peru,  yet  lie  would  not  grant  commissions  in  aid  of  a  defense 
to  an  action  when  he  was  not  satisfied  that  tlie  facts  alleged 
as  a  defense  would  constitute  a  legal  defense  to  the  legal  de- 
mand." The  court  (he  added)  "  ought  never  to  grant  a  com- 
mission without  examining  strictly  what  is  the  state  of  the 
pleadings."  It  is  evident,  from  this  statement  of  the  loid 
chancellor,  that  when  after  his  retirement  from  office  he  gave 
an  opinion,  as  stated  by  Daniel,  that  the  witnesses'  names 
need  not  be  inserted  in  the  affidavit,  he  did  not  intimate  they 
and  the  other  facts  were  not  necessarily  made  to  aj)i)ear  in  the 
pleadings  and  by  other  means. 

In  the  case  of  Martin  v.  Nicholls,  3  Simons,  458,  there  is  a 
strong  illustration  of  this  doctrine.  Tlu-  principle  a.-^serted  is 
that  a  bill  lor  discovery  against  a  defendant,  and  a  prayer  for 
a  commission  to  take  the  examination  of  witnesses,  is  dernvr- 


38  EQUITY    I'LEADING. 

rahle.  The  facts  in  the  case  were  that  a  bill  was  filed,  alleg- 
ing that  a  judgment  had  been  obtained  against  complainant 
in  Antigua,  on  which  an  action  was  pending  in  England 
against  the  complainant.  It  set  forth  certain  facts  to  show 
the  foreign  judgment  was  void,  prayed  a  discovery  against 
the  defendant,  and  stated  that  without  proof  of  such  facts  the 
complainant  could  make  no  defense  at  law  ;  it  prayed,  also, 
that  a  commission  might  issue  to  take  the  testimony  of 
witnesses  at  Antigua  and  other  j)laces  beyond  the  sea.  A 
demvrrcr  was  filed.  The  court,  after  deciding  (correctly  or  not 
is  not  the  inquiry)  that  to  the  foreign  judgment  the  facts,  if 
proved,  could  not  constitute  a  defense,  for  that  reason  sus- 
tained the  demurrer.  The  chancellor  said,  "  If  I  were  to  allow 
this  bill  to  stand,  I  should  be  in  effect  saying  that  the  judg- 
ment obtained  in  '  Antigua'  may  be  overruled  in  the  court  of 
common  pleas."  In  the  language  of  the  chancellor  in  that 
case,  this  court  may  say  that  if  they  allow  the  present  applica- 
tion, so  far  as  the  evidence  as  to  title  goes,  that  it  is  in  effect 
to  say  it  has  the  right  to  try  title. 

Lord  Eldon  has  said,  as  we  have  seen  in  Lousada  v.  Templar, 
2  Russ.,  501,  the  court  ought  never  to  grant  a  commission 
without  strictly  examining  the  i)leadings.  This  is  for  the 
purpose  of  ascertaining  the  issue  to  be  tried  by  the  court,  and 
the  materiality  of  the  testimony  to  try  it.  When  we  look  at 
the  pleadings  in  this  case,  we  find  the  relief  prayed  for  is  the 
issue  of  an  injunction  to  arrest  the  destruction  of  property 
until  an  adjudication  of  it  has  been  made  by  the  tribunals  to 
which  it  has  been  confided  by  law.  The  whole  structure  of 
the  bill  assumes  the  ground,  and  upon  it  asks  the  relief  j)rayed, 
that  the  district  court  has  sole  jurisdiction  between  the  par- 
ties on  the  question  of  title,  and  that  all  the  power  of  this 
court  is  limited  to  granting  an  injunction,  and  thus  extending 
a  relief  not  within  the  sphere  of  the  district  court.  In  the 
answer  a  demurrer  is  incorporated,  which  assigns  as  one  of  its 
grounds,  that  it  appears  from  the  bill  itself  that  no  other  than 
the  district  court  can  entertain  jurisdiction  of  said  claim.  It 
has  been  contended  throughout,  by  the  defendants,  that  this 
court  could  not  adjudicate  upon  title,  it  being  within  the 
sole  jurisdiction  of  the  district  court,  and  that  circumstance 
assigned  as  a  reason  why  this  court  could  not  entertain  juris- 
diction of  this  bill,  which  asks  for  the  issue  of  an  injunction. 
The  court,  by  decreeing  the  relief  phiyed  for,  asserted  jurisdic- 


UNITED    STATES    V.    PAUKOTT.  '6\) 

tion  over  the  injunction,  i>ltlK)U<;li  it  (lisd.iiincd  all  power  to 
decide  title.  They  did  so  upon  the  ground  that  a  court  of 
equity  would  provide  for  the  safety  of  i)roi)erty  in  dispute, 
pending  a  litigation,  arid  sustained  the  position  by  reference 
to  the  action  of  the  English  chancer}'  in  relation  to  the  preser- 
vation of  property  in  dispute  in  the  ecclesiastical  courts. 
Now,  the  })leadings  in  this  case  are  not  changed  ;  the  issue  is 
the  same;  title  is  no  more  now  in  issue  in  tliis  court  than  it 
was;  the  jurisdiction  of  this  court  over  this  case  is  in  no  ways 
altered,  increased,  or  diminished. 

Under  these  circumstances,  application  is  made  to  obtain 
testimony  from  abroad  whicli  relates  to  the  title  of  defendants, 
to  be  used  on  the  trial  of  this  cause,  or  upon  a  motion  to  dis- 
solve the  injunction  which  has  been  granted.  It  is  the 
ordinary  practice  of  a  court  of  chancery  to  dissolve  an  injunc- 
tion already  issued,  after  answer  tiled;  and  there  is  no  objec- 
tion to  the  renewal  of  such  motion  upon  new  and  material 
testimony  which  would  be  admissible  as  evidence  on  the  issue 
pending  between  the  parties.  Indeed,  such  motion  may  arise 
on  any  new  matter  which  may  have  arisen  since  the  issuing 
of  the  injunction.  For  instance,  the  injunction  issued  in  this 
case  has  been  granted  to  preserve  property,  the  title  of  w'hich 
is  pending  in  another  .court.  This  tribunal  will  watch  the 
conduct  of  the  parties,  and  continue  or  dissolve  the  injunction, 
as  the  justice  of  the  case  may  demand.  If  the  conduct  of  the 
complainants  be  such  as  to  intimate  a  desire  to  delay  or  post- 
pone the  trial  of  the  title,  this  court  would,  upon  motion,  dis- 
solve the  injunction  and  dismiss  the  bill.  If,  on  the  other 
hand,  the  conduct  of  the  complainant  be  such  as  evinces  a 
desire  to  go  to  prompt  trial  of  the  title,  the  injunction  would 
be  continued  until  the  determination  of  the  title  by  the  courts 
to  which  it  was  confided  by  law.  If  that  determination  be  in 
favor  of  defendants,  a  dissolution  of  the  injunction  would  be 
decreed,  and  the  bill  dismissed.  If  in  favor  of  complainants, 
it  is  unnecessary  to  prejudge  the  action  of  the  court.  Hut  the 
result  must  be,  in  one  event,  to  decree  a  per})etual  injunction; 
and  in  another,  to  dissolve  the  injunction,  restoring  the 
parties  to  their  former  relative  })osition  and  respective  rights, 
the  court  having  accomplished  its  ol)ject — the  preservation  of 
the  property  pending  the  dispute.  Whether  a  ))erj)etual 
injunction  be  granted  or  the  bill  dismissed,  the  decree  will  be 
final  on  the  onl}^  issue  of  which  this  court  has  jurisdiction. 


■40  EQUITY    PLEADING. 

U[)()ii  the  ground,  then,  tliat  the  court  has  no  jurisdiction  to 
try  title,  and  that  it  would  be  the  assertion  on  its  ])art  of  the 
right  to  do  so  if  this  application  were  granted;  that  the 
evidence  as  to  title  cannot  be  used  in  this  court, — this 
tribunal,  in  the  exercise  of  the  discretion  re[)0sed  in  it,  as  con- 
trolled by  the  usages  and  principles  of  a  court  of  chancery,  is 
constrained  to  deny  the  present  motion. 

But  there  is  another  aspect  in  which  tliis  case  must  be 
viewed,  and  which  must  also  control  the  discretion  of  the 
court.  Whatever  may  be  the  legal  effect  of  the  adjudications 
of  the  tribunals  to  whoni  the  question  of  title  is  confided  by 
law,  u])on  the  rights  of  third  [)arties,  who  luive  conflicting 
claims  to  the  property  disputed,  and  who  were  not  parties  to 
the  })roceedings  in  those  tribunals,  there  can  be  little  doubt, 
that,  as  between  the  claimants  under  the  act  of  March  3,  1851 
(9  Statutes  U.  S.,  631),  and  the  government  of  the  United 
States,  the  provisions  of  that  law  cannot  be  disregarded  by 
this  court.  By  that  act,  congress  prescribed  the  agencies, 
manner,  and  conditions  on  which  the  government  consented 
to  be  sued,  and  through  which,  in  which,  and  upon  which, 
they  would  surrender  the  legal  title  which  had  become  vested 
in  them  l)y  the  treaty  of  Guadalupe  Hidalgo,  to  such  as  estab- 
lished a  better  title,  in  accordance  with  the  provisions  of  that 
law. 

By  it  that  body  delegated  to  certain  special  tribunals  the 
adjudication  of  title,  and  limited  the  manner  in  which  they 
were  enabled  to  act,  taking  every  precaution  by  the  provisions 
of  the  law  to  guard  against  fraud  and  imposture.  The  power 
of  this  court,  as  one  of  chancery,  to  grant  injunction,  and  the 
application  by  the  United  States  for  such  [)rocess,  gives  no 
additional  jurisdiction  to  this  court,  nor  confers  power,  beyond 
that  which  it  has  exercised  as  a  court  of  equity,  to  preserve 
the  substance  of  tlie  property.  To  grant  this  application 
would  (to  use  the  language  of  the  chancellor  in  Nicolls  v. 
Martin,  3  Simons,  455,  as  we  have  seen)  be  in  effect  saying, 
that  this  court  has  jurisdiction  to  try  title,  and,  consequently, 
to  give  relief  if  decided  in  favor  of  the  defendants. 

Was  it  within  the  }^ower  of  congress  to  pass  the  act  of  3d 
March,  1851,  or  is  it  in  conflict  with  any  clause  in  the  con- 
stitution of  the  United  States?  In  the  case  of  West  /'.  Coch- 
r;m,  17  How.,  415,  the  supreme  court  of  the  United  States 
enunciate  the  following  principles:  "  It  was  also  competent  for 


UXITKI)    STATKS    V.    I'AltKoTT.  il 

congress  to  provide  that,  helore  a  litlc  .-liould  he  liivcii  In  any 
one,  the  exact  limits  of"  his  possession,  and  thi-  title  which  the 
United  States  was  to  give,  should  he  'ddineth  ami  thai  this 
should  he  done  hy  such  agencies,  and  in  such  manner,  as 
might  he  fixed  by  congress.  This  is  in  entire  accordance 
with  the  provisions  of  the  treaty,  which  guarantees  to  the 
inhabitants  the  rights  of  projierly  secured  to  them;  but  it  was 
not  intended  to  provide  for  the  particular  modes  and  instru- 
mentalities by  which  such  rights  should  be  ascertained  and 
enforced, — these  being  left  to  the  nation  to  whose  powers  they 
were  confided;  so  that  tlie  question  is:  What  has  congress 
deemed  expedient  ? 

Now,  to  ascertain  what  has  been  done  in  this  case,  we  must 
look  to  the  act  of  congress  passed  March  3,  1851  (9  Statutes  at 
Large,  631),  entitled  "An  act  to  ascertain  and  settle  the 
private  land  claims  in  the  state  of  California." 

By  it,  they  have  confined  exclusively  to  certain  tribunals 
the  adjudication  of  title,  with  specially  delegated  powers,  and 
which,  not  being  courts  of  general  jurisdiction,  can  exercise 
none  not  expressly  granted,  or  directly  and  necessarily 
derived  by  implication.  So  far  from  conferring  authority 
upon  them  to  send  process  to  a  foreign  country  to  procure 
testimony,  a  power  exercised  by  courts  of  general  equity 
powers,  as  we  have  seen,  with  great  caution,  congress  have 
excluded  a  conclusion  that  any  sucli  power  can  exist,  by 
enacting  that  "  no  deposition  taken  by  or  in  behalf  of  any 
such  claimant  shall  l)e  received  in  any  case,  whether  before 
the  commissioners,  or  before  the  district  or  supreme  court  of 
the  United  States,  unless  notice  of  the  time  and  i)lace  of  tak- 
ing the  same  shall  have  been  given  in  writing  to  said  agent, 
or  to  the  district  attorney  of  the  proper  district,  so  long  before 
the  time  of  taking  the  deposition  as  to  enable  him  to  be 
present  at  the  time  and  place  of  taking  the  same;  and  like 
notice  shall  be  given  of  the  time  and  ])lace  of  taking  any 
■deposition  of  the  part  of  the  United  States."  The  introduc- 
tion of  this  clause  into  the  act  is  a  clear  expression  of  the 
determination  of  congress,  when  they  gave  their  consent  that 
the  government  should  be  sued,  that  her  rights  were  not  to  be 
affected  by  any  de{)osition  or  testimony  in  writing,  save  such 
as  had  been  taken  in  the  presence  of  their  agent,  or  of  the 
district  attorney  of  the  proper  district. 

Now,  that  clause  in  the  law  may   have  been  "  gross  injus- 


42  EQUITY    PLEADING. 

tice  "  or  "  oppression,"  and  a  refusal  on  the  part  of  the  present 
administration  to  amend  the  huv  mas'  be  an  "  iniquitous 
attempt  to  suppress  the  means  of  truth,"  as  zealously  urged 
by  one  of  the  solicitors  of  those  who  are  making  this  applica- 
tion. Congress  may,  however,  have  been  impelled  by  what 
they  deemed  legitimate  and  prudent  precaution  to  shield  the 
rights  of  the  government  from  the  dangei's  of  testimony  taken 
in  a  foreign  country,  among  a  people  who  had  just  ceased  to 
be  avowed  enemies  of  this  country,  without  the  checks  and 
sanctions  thrown  around  the  proceedings  by  the  presence  of 
the  agent  of  this  government,  and  by  the  execution  of  the 
commission  before  an  American  functionary.  The  present 
administration  may  have  been  actuated  by  the  same  motives 
in  refusing  to  amend  the  said  act  as  has  been  urged. 

The  general  rule  is,  however,  "  that  if  the  motive  and 
design  of  an  act  may  be  traced  to  an  honest  and  legitimate 
source,  equally  as  to  a  corrupt  one,  the  former  ought  to  be 
preferred."  Arredondo's  Case,  6  Pet.,  716.  But  with  the 
motives  of  the  govei-nment  which  passed  the  law,  or  the 
present  administration,  which,  it  is  urged,  has  declined  to  aid 
in  its  repeal,  this  court  has  nothing  to  do.  Such  legislation, 
if  it  be  as  represented,  does  not  conflict  with  the  constitution 
of  the  United  States ;  and  the  highest  tribunal  in  our  country 
has  decided  that  it  is  competent  for  congress  to  regulate  the 
manner  and  agencies  by  which  the  title  of  claimants  to  lands 
shall  be  ascertained,  and  that  such  legislation  does  not  violate 
any  rights  intended  to  be  secured  by  the  treaty.  The  conclu- 
sions to  which  the  court  has  come  are  : 

1st.  That  an  application  for  the  appointment  of  commis- 
sioners to  take  testimony  abroad  is  not  grantable  of  course  ; 
but  it  is  addressed  to  the  judicial  discretion  which  is  controlled 
by  the  usages  and  rules  of  chancery  practice,  in  accordance 
with  which  the  present  motion  cannot  be  granted. 

2d.  The  act  of  Sd-  March,  1851  (0  Statutes,  c.  31),  cannot  be 
disregarded  ;  and  this  court  ought  not  to  violate  the  spirit  and 
policy  of  that  act  by  granting  its  process  to  take  testimony 
abroad,  to  be  used  in  the  trial  of  title  in  this  cause.  The 
motion,  therefore,  must  be  denied. 

FITCH  V.  CEEIGHTON. 
(24  Howard,  159-164.     1860.) 

Opinion  by  Mr.  Justice  McLean. 

Statement  of  P^acts. — This  is  an  appeal  from  the  circuit 


FITCH    V.    CHKIGHTON.  1.'^ 

court  of  tlie  ruitcd  States  for  llu>  northern  district  of  Ohio. 
The  bill  was  filed  by  luhvard  C'rei<ihton,  a  citizen  of  the  state 
of  Iowa,  against  John  Fitch,  a  citizen  o'f  tlie  state  of  Ohio. 

By  the  act  of  March  11,  1853  (Swan's  Statutes  Ohio),  it  is 
provided  "that  the  cit}' council  shall  have  power  to  layoff, 
open,  widen,  straighten,  extend  and  establish,  to  improve, 
keep  in  order  and  rej)air,  and  to  light  streets,  alleys,  public 
grounds,  wharves,  landing  })laces  and  market  spaces;  to  ojK'n 
and  construct,  and  put  in  order  and  repair,  sewers  and  di'ains; 
to  enter  u})on  or  take  for  such  of  the  above  purposes  as  may 
require  it,  land  and  matei'ial ;  and  to  assess  and  collect  and 
charge  on  the  owners  of  any  lots  or  lands,  through  or  by 
which  a  street,  alley  or  public  highway  shall  pass,  for  the 
purpose  of  defraying  the  expenses  of  constructing,  im})roving 
and  repairing  said  street,  alley  or  public  liighway,  to  be  in 
proportion  eitlier  to  the  foot  front  of  the  lot  or  land  abutting 
on  such  street,  alley  or  highway,  or  the  value  of  said  lot  or 
land  as  assessed  for  taxation  under  the  general  law  of  the 
state,  as  such  municipal  corporation  may  in  each  case  deter- 
mine." 

Each  municipal  corporation  may,  either  by  general  or 
special  law  or  ordinance,  prescribe  the  mode  in  which  the 
charge  on  the  respective  owners  of  lots  or  lands  shall  be 
assessed  and  charged  to  the  owner,  which  shall  be  enforced  by 
a  proceeding  at  laAV  or  in  ec{uity,  either  in  the  name  of  the 
corporation  or  of  any  person  to  whom  it  shall  be  directed  to 
be  paid,  but  the  judgment  or  decree  was  required  to  be  entered 
severally  ;  and  a  charge  was  required  to  be  enforced  for  the 
value  of  the  work  or  material  on  such  lot  or  land  ;  and  where 
payment  shall  have  been  neglected  or  refused  when  I'cquired, 
the  corporation  shall  be  entitled  to  recover  tlie  amount  as- 
sessed, and  five  per  cent,  from  the  time  of  the  assessment. 
Swan's  Stat.,  903. 

On  the  7th  of  A2)ril,  ISr);'),  the  city  of  Toledo  entered  into  a 
contract  with  Creighton,  and  one  Edward  Connelly,  who 
bound  themselves  to  do  certain  work  on  the  streets,  for  the 
sums  named  in  the  contract ;  and  that  so  soon  as  the  work 
was  com})leted,  the  street  commissioner  should  give  them  a 
certificate  to  the  effect,  and  on  the  presentation  of  the  same  to 
the  council,  it  would  assess  the  cost  and  expenses  of  the  im- 
provement on  the  lots  or  lands  made  liable  by  law  to  jiay  the 
same,  and  make  out  and  deliver  to  the  contractors  a  certified 


44  KCiUITY    PLEADING. 

copy  of  said  assessments,  and  authorize  them  or  assigns  to 
collect  the  several  amounts  due  and  payable  for  the  work  and 
improvement. 

Creighton  purchased  from  Connelly  his  interest  in  the  con- 
tract, and  went  on  and  performed  the  work  under  it,  to  the 
acceptance  of  the  city.  On  the  14th  of  July,  1856,  the  coun- 
cil made  an  assessment  on  the  lots  abutting  on  the  im[)rove- 
ment  in  Monroe  street,  to  pay  the  exj^enses  of  that  work,  and 
directed  that  the  owners  of  the  lots  make  payment  of  the 
assessments  to  Creighton.  Among  the  rest,  lot  640,  belonging 
to  John  Fitch,  was  assessed  for  this  work  $84.56. 

On  the  20th  May,  1856,  the  council  made  an  assessment 
upon  the  lots  abutting  on  said  improvement  in  Michigan 
street,  to  pay  for  the  same,  and  also  directed  the  owners  of 
these  lots  to  make  payments  of  such  assessments  to  Creighton. 
Among  the  lots  so  assessed  were  the  following,  owned  by  de- 
fendant, numbered  547,  538,  539,  544,  1,461  ;  the  assessments 
of  the  respective  lots  amounted  to  the  sum  of  $1,791.76  ;  and 
subsequently  a  further  assessment  was  made  on  the  contract 
of  three  lots,  numbered  686,  751  and  855,  which  amounted  to 
the  sum  of  $266.47.  The  above  sums  were  ordered  to  be 
paid  to  the  com})lainant,  with  five  per  centum  allowed  by  law. 
To  this  bill  the  defendant  demurred,  which,  on  argument,  was 
overruled.  And  the  court  ordered  the  above  sums  to  V)e  paid 
in  ten  days,  or  in  default  thereof  that  the  lots  be  sold,  etc. 

From  this  decree  an  appeal  was  taken.  On  the  part  of  the 
appellant  it  is  claimed  that,  upon  the  facts  of  the  case,  the 
circuit  court  had  no  jurisdiction  ;  that  the  equity  jurisdiction 
of  the  courts  of  the  United  States  depends  upon  the  principles 
of  general  equit}^  and  cannot,  therefore,  be  affected  by  any 
local  remedy,  unless  that  remedy  has  been  adopted  by  the 
courts  of  the  United  States. 

By  the  thirty-fourth  section  of  the  judiciary  act  of  1789,  it 
is  declared  "  that  the  laws  of  the  several  states,  except  where 
the  constitution,  treaties  or  statutes  of  the  United  States  shall 
require  or  provide,  shall  be  regarded  as  rules  of  decision  in 
trials  at  common  law  in  the  courts  of  the  United  States,  in 
cases  where  they  apply."  This  section  does  not  relate  to  the 
practice  of  our  courts,  but  it  constitutes  a  rule  of  property  on 
which  the  courts  are  bound  to  act.  The  courts  of  the  United 
States  have  jurisdiction  at  connnon  law  and  in  chancery,  and 
wherever  such  jurisdiction   may   be  a|)propriately  exercised, 


KITCll     V.    CKKKniTON.  45 

there  being  lu^  ol^jcetioii  to  the  cid/.eiisliip  ol'  tlie  (laitics,  (he 
courts  of  the  United  JStates  liave  jiiris(Heli<)ii.  I'liis  is  not 
derived  from  the  })0\ver  of  the  state  l»ut  fioin  the  laws  of  the 
United  States. 

In  Clark  v.  Smith,  13  Pet.,  203,  the  court  say,  "  the  state 
legislatures  certainly  have  no  authority  to  prescribe  the  forms 
and  modes  of  proceeding  in  the  courts  of  the  United  States  ; 
but  having  created  a  right,  and  at  the  same  time  prescribed 
the  remedy  to  enforce  it,  if  the  remedy  prescribed  is  substan- 
tially consistent  with  the  ordinary  modes  of  proceeding  on  the 
chancery  side  of  the  federal  courts,  no  reason  exists  wliy  it 
should  not  be  pursued  in  the  same  form  as  it  is  in  the  state 
courts." 

In  the  case  above  cited,  the  legislature  of  Kentucky  author- 
ized a  ])erson  who  was  in  possession  of  land  claimed  by  him, 
and  some  one  else  had  a  claim  on  the  same  land  ;  the  pos- 
sessor was  authorized  to  file  a  bill  against  the  claimant  to 
litigate  his  title  and  remove  the  cloud  from  it.  Tlie  statute 
authorizes  a  suit  at  law  or  in  equity,  but  from  the  nature  of 
the  case  it  would  seem  that  chancery  was  the  aj)propriate 
mode. 

There  was  no  necessity  to  make  Connelly  a  party  in  tliis 
case.  He  made  the  contract  jointly  with  Creighton.  Ikit 
before  the  work  was  commenced  Connelly  relinquished  his 
right  to  Creighton,  who  jHM-formed  the  whole  work,  and  to 
whom  the  city  council  promised  payment.  The  assessments, 
too,  were  made  to  Creighton,  and  he  was  considered  the  only 
contractor  with  the  city.  No  right  was  held  under  Connelly. 
By  the  statute  the  city  makes  an  assessment  which  is  to  be 
paid  by  the  owner  personally,  and  it  is  also  made  a  lien  on 
the  property  charged.  '^I'his  charge  may  be  collected  and  the 
lien  enforced  by  a  proceeding  at  law  or  in  equity,  either  in 
the  name  of  the  city  or  its  appointee.  The  claimant  is  the 
appointee  for  this  purpose,  and  his  right  is  too  clear  to  admit 
of  controversy. 

This  bill  is  not  multifarious;  tlie  assessments  were  assessed 
on  the  lots  by  the  foot  front,  and  all  against  the  same  de- 
fendant. Lord  Cottenham,  in  Campbell  v.  Mackay,  7  Simon, 
564,  and  in  Mylne  &  Craig,  603,  says,  to  lay  down  any  rule, 
applicable  universally,  or  to  say  what  constitutes  multifarious- 
ness, as  an  abstract  proposition,  is,  upon  the  authorities, 
utterly  impossible.     Every  case  must  be  governed  by  its  cir- 


46  EQUITY    PLEADING. 

cLimstances;  and  as  these  are  as  diversified  as  the  names  of  the 
parties,  the  court  must  exercise  a  sound  discretion  on  the  sub- 
ject. Whilst  parties  should  not  be  subjected  to  expense  and 
inconvenience  in  litigating  matters  in  which  they  have  no 
interest,  multiplicity  of  suits  should  be  avoided  by  uniting  in 
one  bill  all  who  have  an  interest  in  the  principal  matter  in 
controversy,  though  the  interests  may  have  arisen  under  dis- 
tinct contracts. 

We  think  the  statute  of  the  state,  and  the  municipal  cor- 
poration of  Toledo,  authorize  the  assessment  of  the  sums  on 
the  lots  in  question,  and  that  the  judgment  in  the  circuit 
court  must  be  affirmed. 

UNITED  STATES  v.  GILLESPIE. 
(Circuit  Court  for  New  Jersey  :  9  Federal  Keportei',  74-77.     1881.) 

Opinion  by  Nixon,  J. 

Statement  of  Facts. — The  bill  of  complaint  is  filed  in  this 
cause  against  the  executors  of  Joseph  L.  Lewis,  late  of  Hobo- 
ken,  in  the  county  of  Hudson  and  state  of  New  Jersey, 
deceased,  and  it  alleges  that  the  said  Lewis  departed  this  life 
on  or  about  the  4th  day  of  March,  1877,  having  first  duly 
made  and  executed  his  last  will  and  testament,  bearing  date 
October  1,  1873,  and  a  codicil  thereto,  dated  June  5,  1875,  by 
which  will  and  codicil,  after  certain  specific  bequests,  he  de- 
vised and  bequeathed  all  the  residue  of  his  estate  as  follows  : 

"  I  give,  devise  and  bequeath  all  the  rest,  residue  and  re- 
mainder of  my  estate,  real  and  personal,  and  of  every  kind 
whatsoever,  of  which  I  may  die  seized  and  possessed,  and  to 
which  I  may  be  at  my  death  entitled,  unto  my  executors,  in 
trust,  to  expend  and  apply  in  reducing  the  national  debt  of 
the  United  States  of  America,  contracted  in  the  course  of  the 
rebellion  of  18G1.  In  the  execution  of  this  trust  my  executors, 
as  trustees,  may  use  their  discretion  as  to  the  manner  of  apply- 
ing the  said  residue  and  remainder  of  my  estate  to  the  reduc- 
tion of  the  said  debt ;  but  I  strictly  enjoin  them  that  they 
personally  superintend  the  application  of  the  said  residue  and 
remainder  to  the  purpose  aforesaid,  that  there  may  be  as  little 
waste  of  it  as  possible,  and  that  it  may  not  be  diverted  to 
other  uses  by  dishonest  officials." 

It  further  alleges  :  That  the  executors  propounded  the  will 
for  probate  in  the  prerogative  court  of  New  Jersey  about  the 
15th  of  May,  1877  ;  that  the  same  was  admitted  to  j^robate, 


UNITED    STATES    V.    GILLESl'IE.  17 

tiiid  letters  testamontarv  gi'aiitcil  (hereon  (o  the  said  excciilors 
oil  the  29th  of  jNIay,  1878;  and  (!iat  (hey  (hereupon  took  on 
themselves  the  administration  of  (he  esta(e,  and  liave  therehy 
obtained  the  possessionof  and  now  hold  Uni((Ml  States  bonds 
iind  securities,  and  other  property  of  oreat  value,  belonj;in<j:  to 
the  said  Lewis  at  the  time  of  his  death. 

The  bill  states  various  other  matters,  to  wliieh  it  is  not 
■deemed  necessary  to  refer  in  this  connection  ;  and,  af(er  alleg- 
ing that  the  will  has  created  a  trust  in  favor  of  the  United 
States  which  the  defendants  arc  legally  bound  to  execute,  and 
that  the  United  States  has  full  right  and  power  to  enforce  its 
performance  in  this  court,  it  prays  :  That  an  account  of  the 
estate  of  the  testator,  and  of  the  receii)ts  and  disbursements  of 
the  executors,  shall  be  taken  and  audited,  and  that  the  debts, 
legacies  and  expenses  remaining  unpaid  shall  be  duly  paid, 
under  the  direction  of  the  court,  in  due  course  of  administra- 
tion; that  the  amount  of  the  net  residue,  applicable  to  the 
reduction  of  the  national  debt,  shall  be  ascertained  and  settled; 
and  that  the  executors  shall  bring  the  funds  in  their  hands 
into  the  court  to  abide  the  administration  thereof,  and  the 
decree  to  be  rendered  therein;  and  that  it  may  be  adjudged 
and  decreed  that  the  said  bequest  in  favor  of  the  United  States 
is  valid  and  operative;  and  tiiat  the  defendants  be  decreed  to 
execute  the  trust  in  regard  to  the  residue  of  the  estate;  and 
that  the  defendants  shall  answer,  state  and  set  forth  how  they 
propose  to  perform  and  fulfil  the  trust,  after  the  residue  of  the 
estate  has  been  ascertained;  and  that,  if  such  proposal  be  satis- 
factory to  the  court,  the  defendants  shall  be  authorized  and 
directed,  by  the  decree  of  the  court,  to  execute  the  said  trust 
in  the  manner  so  proposed;  and  that  the  complainant  may 
have  such  other  and  further  relief  in  the  premises  as  the 
nature  of  the  case  may  require. 

To  the  bill  the  defendants  have  interposed  six  pleas,  sup- 
porting the  same  by  an  answer.     They  substantially  allege: 

(1)  That  the  complainant  has  made  no  reasonal)le  demand 
for  the  legacy  or  relief  prayed  for. 

(2)  That  no  suit  can  be  maintained  against  an  executor,  in 
a  court  of  equity,  for  a  legacy,  or  other  such  relief  as  is  ])raycd 
by  the  bill,  on  such  allegations  as  are  made  in  the  l)ill,  until 
a  reasonable  demand  has  been  made  for  such  legacy  or  relief, 
and  that  no  reasonable  demand  has  been  made. 

(3)  That  by  the  statute  law  of  New  Jersey  no  suit  at  law 


48  EQUITY    PLEADING. 

can  be  maintained  for  a  legacy  or  bequest  until  after  reason- 
able demand  made  upon  the  executor  who  ought  to  pay  the 
same;  and  that  no  such  demand  has  been  made  for  any  part 
of  the  relief  prayed  for,  or  for  any  action  on  the  part  of  the 
executors,  in  relation  to  the  discharge  of  their  duties  under 
the  will. 

(4)  That  no  persons  interested  in  the  estate  of  a  testator  as 
legatee  or  ceshii  que  trust  can  lawfully  cite  executors  to 
account,  alleging  only  the  facts  alleged  in  the  bill  of  com- 
plaint, until  after  a  year  from  the  probate ;  and  in  case  of  a 
suspension  of  their  authority  by  an  appeal  from  the  probate, 
until  one  year  after  the  affirmance  of  the  probate;  that  in  the 
present  case  the  probate  was  granted  May  29,  1880;  that  it 
was  appealed  from  by  John  S.  Cathcart  and  others  on  the  1st 
of  June,  1880,  and  was  affirmed  by  the  court  of  errors  and 
appeals  March  1,  1881;  that  said  appeal  suspended  all  rights 
and  powers  of  the  executors,  except  such  rights  and  powers  as 
they  had  before  the  probate;  and  that  they  were  unable  to  sue, 
or  be  sued  for  or  in  respect  of  any  matter  stated  in  the  bill, 
until  they  had  an  unsuspended  authority  for  one  year  after 
probate,  and  that  when  the  bill  was  filed,  to  wit,  June  7, 1881, 
they  had  had  an  unsuspended  autority  for  only  one  hundred 
and  two  days. 

(5)  That  by  the  laws  of  New  Jersey  an  order  may  be  made 
by  the  ordinary,  or  other  authority  granting  probate,  that  the 
executors  of  an  estate  give  notice  to  creditors  of  the  decedent 
to  bring  in  their  demands  against  the  estate  within  nine 
months,  on  the  expiration  of  whicli  time  the  court  may  decree 
that  all  creditors  who  have  not  brought  in  their  claims  shall 
be  barred  ;  that  such  order  was  taken  in  this  case  March  12, 
1881,  which  was  the  earliest  time  that  an  effectual  and  un- 
doubted order  could  be  obtained  in  consequence  of  the  suspen- 
sion of  their  authority  by  the  appeal ;  that  until  the  date  of 
the  expiration  of  said  order,  to  wit,  December  12,  1881,  it 
cannot  appear  that  there  is  any  residue  of  the  estate  after  pay- 
ing creditors ;  that  many  persons  have  made  claim  to  all,  or  a 
large  portion,  of  the  testator's  assets,  under  deeds  of  trust  and 
secret  trusts  created  by  testator  before  his  death,  not  disclosed  ; 
and  that  these  claimants  to  the  corpus  of  the  estate  should  be 
barred  before  any  decree  against  the  executors. 

(6)  That  by  statute  no  action  can  be  brought,  either  at  law 
or  in  equity,  against  the  executors  within  six  months  after 


rXITKI)    STATES    V.    <il  M-KSl'IK.  49 

probate  uraiitcd,  uiiU'ss  ii|m)ii  siioocstioii  ol"  I'raiid  ;  ami  tliat 
six  months  lias  not  ela|»s(Ml  IVoni  and  alter  j)robate  was  planted 
to  tliem  of  said  will,  within  the  meaning  ol' said  slatnte. 

These  pleas  have  been  set  down  lor  argument  under  the 
thirty-third  equity  rule,  and  the  res{)ectivc  parties  have  been 
fully  beard.  After  a  careful  consideration  we  are  of  the 
opinion  that  tliey  must  be  overruled.  They  seem  t«»  have 
been  founded  upon  a  mistaken  ai)prehension  of  the  nature, 
cliaracter  and  object  of  the  bill  of  complaint.  It  is  not  a  suit 
for  legacy  or  be(]ue.st,  and  hence  the  several  statutes  quoted, 
and  the  reasons  lor  a  stay  of  proceedings  against  executors  in 
suits  of  that  sort,  have  no  ap})lication.  The  theory  of  the  bill 
is  that  there  is  an  estate  in  the  course  of  administration  in 
one  of  the  courts  of  the  state  of  New  Jerse}'  which  the  coni- 
plaintant  desires  to  have  administered  here;  that  the  defend- 
ants are  the  executors  and  trustees  of  the  estate,  and  have  the 
trust  fund  in  their  hands,  to  be  disposed  of  according  to  the 
provisions  of  the  will;  that  the  complaintant,  as  ce-s/n/  que  trust, 
is  entitled  to  have  the  will  construed  by  this  court,  and  to 
have  the  directions  of  the  court  to  the  executors  and  trustees, 
in  regard  to  the  proper  method  of  executing  the  trust ;  and,  as 
auxiliary  to  this,  may  require  an  account  in  order  to  ascertain 
what  is  the  residue  of  the  estate  available  for  the  purpcses  of 
the  trust.  The  general  jurisdiction  of  courts  of  chancery  over 
questions  of  this  kind,  in  the  administration  of  estates,  is  un- 
doubted, and  such  jurisdiction  mu.st  be  exercised  by  this  court, 
sitting  in  equity,  when  the  proper  ])arties  appear  to  invoke 
it.  Entertaining  this  view'  it  is  not  necessary  to  follow  the 
counsel  in  their  learned  discussion  of  questions  which  are  not 
involved  in  the  subject-matter  of  the  bill  of  complaint.  But, 
perhaps,  w'e  ought  to  advert  to  the  apprehensions  ex])ressed  on 
the  argument  that  the  mere  allowance  of  the  suit  might  be  con- 
strued into  a  reflection  upon  the  conduct  of  the  defendants. 
We  do  not  so  regard  it.  We  find  nothing  in  the  bill  suggest- 
ing unfaithfulness  on  their  part,  and  look  upon  the  proceeding 
as  a  request  by  the  comi)lainant  that  the  court  should  aid  the 
trustees  in  the  discharge  of  their  delicate  and  responsible 
duties,  and  should  require  only  the  exercise  of  such  reason- 
able diligence  as  the  condition  of  the  estate  and  the  circum- 
stances of  the  case  demand.  With  what  speed  they  should  be 
ordered  to  proceed  is  under  the  control  of  the  court,  to  ])e 
determined  on  the  answer,  and  not  on  the  pleas;  and  it 
4 


50  EQUITY    PLEADING. 

ought  not  to  be  assumed  in  advance  that  the  court  will  make 
any  order  which  will  unreasonably  subject  the  defendant  to 
either  hazard,  loss  or  practical  inconvenience. 

The  plea  should  be  overruled,  and  it  is  ordered  accordingly. 

PAYNE  V.  HOOK. 
(7  Wallace,  425-433.     1868.) 

Appeal  from  U.  S.  Circuit  Court,  District  of  Missouri. 

Statement  of  Facts. — Ann  Payne,  a  citizen  of  Virginia, 
filed  a  bill  in  the  circuit  court  of  the  United  States  for  Mis- 
souri, against  Zadoc  Hook,  public  administrator  of  Calloway 
county,  and  his  sureties  on  his  bond,  citizens  of  Missouri,  to 
obtain  her  distributive  share  of  the  estate  of  her  brother,  who 
died  intestate,  which  was  committed  to  Hook's  care  by  the 
•county  court  of  Calloway  county.  The  bill  simpl}'  set  forth 
the  names  of  the  distributees,  and  charged  the  administrator 
with  gross  misconduct  in  managing  the  estate,  and  sought  to 
obtain  relief  and  compel  a  true  account  of  the  administration 
and  to  be  paid  what  was  due  her.  Hook  had  not  made  his 
final  settlement.  Defendant  demurred,  and  the  court  below 
sustained  the  demurrer. 

Opinion  by  Mr.  Justice  Davis. 

The  jurisdiction  of  the  circuit  court  for  Missouri  to  hear  this 
cause  is  denied,  because,  in  that  state,  exclusive  jurisdiction 
over  all  disputes  concerning  the  duties  or  accounts  of  admin- 
istrators until  final  settlement  is  given  to  the  local  county 
court,  which  is  the  court  of  probate  ;  and  as  the  administration 
complained  of  is  still  in  progress  in  the  couiity  court  of  Callo- 
way county,  resort  must  be  had  to  that  court  to  correct  the 
errors  and  frauds  in  the  accounts  of  the  administrator.  The 
theory  of  the  position  is  this  :  that  a  federal  court  of  chancery, 
sittino'  in  Missouri,  will  not  enforce  demands  against  an  ad- 
ministrator  or  executor,  if  tlie  court  of  tlie  state,  having 
general  chancery  powers,  could  not  enforce  similar  demands. 
In  other  words,  as  the  complainant,  were  she  a  citizen  of 
Missouri,  could  obtain  a  redress  of  her  grievances  only  through 
the  local  court  of  probate,  she  has  no  better  or  different  rights 
because  she  happens  to  be  a  citizen  of  Virginia. 

If  this  position  could  be  maintained,  an  important  part  of 
the  jurisdiction  conferred  on  the  federal  courts  by  the  consti- 
tution and  laws  of  congress  would  be  abrogated.  As  the 
citizen  of  one  state  has  the  constitutional  right  to  sue  a  citizen 


PAYNE    V.    HOOK.  51 

of  another  state  in  the  eourts  of  the  I'liited  States,  instead  of 
resorting  to  a  state  tribunal,  of  ^vliat  value  would  that  right 
be,  if  the  court  in  which  the  suit  is  instituted  could  not  pro- 
ceed to  judgment  and  afford  a  suitable  measure  of  redress? 
The  right  would  be  worth  nothing  to  the  party  entitled  to  its 
enjoyment,  as  it  could  not  })roduce  any  beneficial  results. 
But  this  objection  to  the  jurisdiction  of  the  federal  tiibunals 
has  been  heretofore  presented  to  this  court  and  overruled. 

^^'e  have  repeatedly  held  "  that  the  jurisdiction  of  the 
courts  of  the  United  States  over  controversies  between  citizens 
of  different  states  cainiot  be  imi)aired  by  the  laws  of  the  states 
which  prescribe  the  modes  of  redress  in  their  courts,  or  which 
regulate  the  distribution  of  their  judicial  power."  Hyde  v. 
Stone,  20  How.,  175 ;  Suydam  v.  Broadnax,  14  Pet.,  G7 ; 
Union  Bank  v.  Jolly,  IS  How.,  503.  If  legal  remedies  are 
sometimes  modified  to  suit  the  changes  in  the  laws  of  the 
states  and  the  practice  of  their  courts,  it  is  not  so  with  equi- 
table. The  equity  jurisdiction  conferred  on  the  federal  courts 
is  the  same  that  the  high  court  of  chancery  in  England  pos- 
sesses: is  subject  neither  to  limitation  or  restraint  by  state 
legislation,  and  is  uniform  throughout  the  different  states  of 
the  Union.  Green  v.  Creighton,  23  How.,  90;  Robinson  v. 
Campbell,  3  Wheat.,  212  ;  United  States  v.  Howland,  4 
Wheat.,  108;  Pratt  v.  Northam,  5  Mason,  95. 

The  circuit  court  of  the  L^nited  States  for  the  district  of 
Missouri,  therefore,  had  jurisdiction  to  hear  and  determine 
this  controversy,  notwithstanding  the  peculiar  structure  of  the 
Missouri  probate  system,  and  was  bound  to  exercise  it,  if  the 
bill,  according  to  the  received  principles  of  ec[uity,  states  a 
case  for  equitable  relief  The  absence  of  a  complete  and 
adequate  remedy  at  law  is  the  only  test  of  equity  jurisdiction, 
and  the  application  of  this  principle  to  a  particular  case  must 
depend  on  the  character  of  the  case,  as  disclosed  in  the  })lead- 
ings.      Watson  v.  Sutherland,  5  Wall.,  78. 

"  It  is  not  enougij  that  there  is  a  remedy  at  law.  It  must 
be  plain  and  adequate;  or,  in  other  words,  as  practical  and 
efficient  to  the  ends  of  justice  and  its  prompt  administration 
as  the  remedy  in  ecpiity."     Boyce  v.  Grundy,  3  Pet.,  210. 

It  is  very  evident  that  an  action  at  connnon  law,  on  the 
bond  of  the  administrator,  would  not  give  to  the  complainant 
a  practical  and  efficient  remedy  for  the  wrongs  which,  she 
says,  she   has  suffered.     A  proceeding  at  law  is  not  flexible 


52  EQUITY    PLEADING. 

enough  to  reach  the  fraudulent  conduct  of  tlie  administrator, 
which  is  the  groundwork  of  this  bill,  nor  to  furnish  pro[ier 
relief  against  it.  It  is,  however,  well  settled  that  a  court  of 
chanceiy,  as  an  incident  to  its  power  to  enforce  trusts,  and 
make  those  holding  a  fiduciary  relation  account,  has  jurisdic- 
tion to  compel  executors  and  administrators  to  account  and 
distribute  the  assets  in  their  hands.  The  bill  under  review 
has  this  object,  and  nothing  more.  It  seeks  to  compel  the 
defendant,  Hook,  to  account  and  pay  over  to  Mrs.  Payne 
her  rightful  share  in  the  estate  of  her  brother;  and  in  case 
he  should  not  do  it,  to  fix  the  liability  of  the  sureties  on  his 
bond. 

But  it  is  said  the  proper  parties  for  a  decree  are  not  before 
the  court,  as  the  bill  shows  there  are  other  distributees  besides 
the  complainant.  It  is  undoubtedly  true  that  all  persons 
materially  interested  in  the  subject-matter  of  the  suit  should 
be  made  pjirties  to  it;  but  this  rule,  like  all  general  rules, 
being  founded  in  convenience,  will  yield,  whenever  it  is 
necessary  that  it  should  yield,  in  order  to  accomplish  the  ends 
of  justice.  It  will  yield  if  the  court  is  able  to  proceed  to  a 
decree  and  do  justice  to  the  parties  before  it  without  injury  to 
absent  persons,  equally  interested  in  the  litigation,  but  who 
cannot  conveniently  be  made  parties  to  the  suit.  Cooper's 
Eq.  PL,  35. 

The  necessity  for  the  relaxation  of  the  rule  is  more  especi- 
ally apparent  in  the  courts  of  the  United  States,  where,  often- 
times, the  enforcement  of  the  rule  would  oust  them  of  their 
jurisdiction,  and  deprive  parties  entitled  to  the  interposition 
of  a  court  of  equity  of  any  remedy  whatever.  West  v.  Ran- 
dall, 2  Mason,  181  ;  Story's  Eq.  PI.,  §  89  and  sequentia.  The 
present  case  affords  an  ample  illustration  of  this  necessity 
The  complainant  sues  as  one  of  the  next  of  kin,  and  names, 
the  other  distributees,  who  have  the  same  common  interest, 
without  stating  of  what  j^articular  state  they  are  citizens.  It 
is  fair  to  presume,  in  the  absence  of  any  averments  to  the  con- 
trary, that  they  are  citizens  of  INIissouri.  If  so,  they  could 
not  be  joined  as  plaintiffs,  for  that  would  take  away  the  juris- 
diction of  tlie  court ;  and  why  make  them  defendants,  when 
the  controversy  is  not  with  them,  but  the  administrator  and 
his  sureties  ?  It  can  never  be  indispensable  to  make  de- 
fendants of  those  against  whom  nothing  is  alleged  and  from 
whom  no  relief  is  asked.     A  court  of  equity  adapts  its  decrees 


PAYXK    V.    HOOK.  .'■)3 

to  the  necessities  of  eacli  case,  and  should  the  pivsent  suit 
terminate  in  a  decree  a<2,ainst  the  defendants,  it  is  easy  to  do 
substantial  justice  to  all, the  parties  in  interest,  and  i)revent  a 
multiplicity  of  suits,  by  allowing  the  otlier  distributees,  either 
through  a  reference  to  a  master,  or  by  some  other  j)i'()j>er  pi-o- 
cecding,  to  come  in  and  share  in  the  benefit  of  the  litigation. 
West  i'.  Randall,  2  Mason,  ISl  ;  \\'ood  v.  Dummer,  '-l  Mason, 
317;  Story's  Ecp  PL,  supra. 

The  next  objection  which  we  have  to  eonsider  is,  that  the 
sureties  of  the  administrator  are  not  proi)er  parties  to  this 
suit.  Their  liability  on  the  bond  in  an  action  at  law  is  not 
denied,  but  it  is  insisted  they  cannot  be  sued  in  e(iuity.  If 
this  doctrine  were  to  prevail,  a  court  of  cliancery,  in  the 
exercise  of  its  power  to  compel  an  administrator  to  account 
for  the  property  of  his  intestate,  would  be  unable  to  do  com- 
plete justice,  for  if,  on  settlement  of  the  accounts,  a  balance 
should  be  found  due  the  estate,  the  "parties  in  interest,  in  case 
the  administrator  should  fail  to  pay,  would  be  turned  over  to 
a  court  of  law,  to  renew  the  litigation  with  his  sureties.  A 
court  of  equity  does  not  act  in  this  way.  It  disposes  of  a  case 
so  as  to  end  litigation,  not  to  foster  it  ;  to  diminish  suits,  not 
to  multiplv  them.  Having  power  to  determine  the  liability 
of  the  administrator  for  his  tnisconduct,  it  necessarily  has  an 
equal  power,  in  order  to  meet  the  })ossible  exigency  oi  the  ad- 
ministrator's inability  to  satisfy  the  decree,  to  settle  the 
amount  which  the  sureties  on  tlie  bond,  in  that  event,  would 
have  to  pay. 

Besides,  it  is  for  the  interest  of  the  sureties  that  they  should 
be  joined  in  the  suit  with  their  princijial,  as  it  enal)les  them  to 
see  that  the  accounts  are  correctly  settled,  and  the  administra- 
tor's liability  fixed  on  a  ])roper  basis.  If  they  were  not  })arties, 
considering  the  nature  and  extent  of  their  obligati(jn,  they 
would  have  just  cause  of  (;om]»laint. 

It  is  said  the  bill  is  multifarious,  but  we  eaniiot  see  any 
ground  for  sucli  an  objection.  A  bill  cannot  be  said  to  1)0 
multifarious  unless  it  embraces  di.stinct  matters  which  do  not 
affect  all  the  defendants  alike.  This  case  involves  but  a  single 
matter,  and  that  is  the  true  condition  of  the  estate  of  Fielding 
Curtis,  which,  when  ascertained,  will  determine  the  rights  of 
the  next  of  kin.  In  this  investigation  all  the  defendants  are 
jointly  interested.  It  is  true  the  bill  seeks  to  oj>en  the  settle- 
ments with  the  probate  court  as  fraudulent,  and  to  cancel  the 


54  EQUITY    I'LEADING. 

receipt  and  transfer  from  the  complainant  to  the  administra- 
tor because  obtained  by  false  representation  ;  but  the  deter- 
mination of  these  questions  is  necessary  to  arrive  at  the  proper 
value  of  the  estate,  and  in  their  determination  the  sureties  are 
concerned,  for  the  very  object  of  the  bond  which  the}''  gave 
was  to  protect  the  estate  against  frauds  which  the  administra- 
tor might  commit  to  its  prejudice. 

The  decree  of  the  circuit  court  for  the  district  of  Missouri  is 
reversed,  and  this  cause  is  remanded  to  that  court  with  instruc- 
tions to  proceed  in  conformity  with  this  opinion. 


CHAPTER  U. 

THE    BILL,    ITS    FORM     AND    REQUISITES. 

Rufe  t>0. 

Every  bill,  in  the  introductory  part  thereof,  shall  contain 
the  names,  places  of  abode,  and  citizensliip  of  all  the  parties, 
plaintiffs  and  defendants,  by  and  against  whom  the  bill  is 
brought. 

The  form,  in  substance,  shall  be  as  follows  :  "To  the  judges 
of  the  circuit  court  of  the  United  States  for  the  district  of 

:  A.   B.,   of  ,  and  a  citizen  of  the  State  of  , 

,  brings  this  his  bill  against  C.  D.,  of  ,  and  a  citizen 


of  the  State  of  ,  and  E.  F.,  of  ,  and  a  citizen  of  the 

State  of  .     And    thereupon   your  orator  coni})lains  and 

says  that,"  &c. 

liule  21. 
The  plaintiff,  in  his  bill,  shall  be  at  liberty  to  omit,  at  his 
option,  the  part  which  is  usually  called  the  common  confed- 
eracy clause  of  the  bill,  averring  a  confederacy  between  the 
defendants  to  injure  or  defraud  the  plaintiff';  also  what  is 
commonly  called  the  charging  part  of  the  bill,  setting  forth 
the  matters  or  excuses  which  the  defendant  is  sui)posed  to 
intend  to  set  up  by  way  of  defense  to  the  bill ;  also  what  is 
commonly  called  the  jurisdiction  clause  of  the  bill,  that  the 
acts  complained  of  are  contrary  to  equity,  and  that  the  de- 
fendant is  without  any  remedy  at  law,  and  the  bill  shall  not 
be  demurrable  therefor.  And  the  plaintiff'  may,  in  the  narra- 
tive or  stating  part  of  his  bill,  state  and  avoid,  by  counter- 
averments,  at  his  option,  any  matter  or  thing  wliich  lie  sup- 
poses will  be  insisted  uj^on  by  the  defendant  by  way  of  defense 
or  excuse  to  the  case  made  by  the  plaintiff  foi"  i-elicf     The 

(55) 


56  KQLITY    PLEADING. 

prayer  of  the  bill  shall  ask  the  special  relief  to  which  the 
plaintiff  supposes  himself  entitled,  and  also  shall  contain  a 
pruyer  for  general  relief;  and  if  an  injunction,  or  a  writ  of 
ne  exeat  regno,  or  any  other  special  order,  pending  the  suit,  is 
required,  it  shall  also  be  specially  asked  for. 

Hide  22. 

If  any  persons,  other  than  those  named  as  defendants  in  the 
bill,  shall  appear  to  be  necessar}'  or  proper  parties  ^lereto,  the 
bill  shall  aver  the  reason  why  they  are  not  made  parties,  by 
showing  them  to  be  without  the  jurisdiction  of  the  court,  or 
that  they  cannot  be  joined  without  ousting  the  jurisdiction  of 
the  court  as  to  the  other  })arties.  And  as  to  persons  who  are 
without  the  jurisdiction  and  may  properly  be  made  parties, 
the  bill  ma}^  pray  that  process  may  issue  to  make  them  parties 
to  the  bill  if  they  should  come  within  the  jurisdiction. 

Huh'   43. 

Instead  of  the  words  of  the  bill  now  in  use,  preceding  the 
interrogating  part  thereof,  and  beginning  with  the  words  "  To 
the  end  therefore,"  there  shall  hereafter  be  used  words  in  the 
form  or  to  the  effect  following  :  "To  the  end,  therefore,  that 
the  said  defendants  may,  if  they  can,  show  why  your  orator 
should  not  have  the  relief  hereby  prayed,  and  may,  upon  their 
several  and  respective  corporal  oaths,  and  according  to  the 
best  and  utmost  of  their  several  and  respective  knowledge, 
remembrance,  information,  and  belief,  full,  true,  direct,  and 
perfect  answers  make  to  such  of  the  several  interrogatories 
hereinafter  numbered  and  set  forth,  as  by  the  note  hereunder 
M^ritten  they  are  respectively  required  to  answer  ;  that  is 
to  say — 

"  1.  Whether,  &c. 

"  2.   Whether,  &c." 

Hide  94. 

Ever}^  bill  brought  by  one  or  more  stockholders  in  a  corpo- 
ralion   against  the  corporation  and  other  parties,  founded  on 


TIIK    I'.II.I.    ITS     I'oKM     AM)     I;  lii^  I   I>1TKS.  ■>/ 

rights  wliicli  may  j)i'(»]i(.'i-ly  bo  assorted  l»y  llio  ('(irpnialion, 
must  1)0  voiilio(i  by  oath,  and  must  oontaiu  an  allouation  that 
the  plaintitl'  was  a  sbai'cboldor  at  tbo  timo  of  ibo  tfansaction 
of  which  he  complains,  or  that  his  shaio  had  dovolvod  on  liim 
since  by  O])eration  of  law,  and  that  the  suit  is  not  a  collusive 
one  to  confoi-  on  a  court  of  the  I'nitod  States  jurisdiction  of  a 
case  of  which  it  would  not  otherwise  have  cognizance.  It 
must  also  set  forth  with  particularity  the  eilbrts  of  the 
plainti^  to  secure  such  action  as  he  desires  on  the  j)art  of  the 
managing  directors  or  trustees,  and,  if  necessary,  of  the  share- 
holders, and  the  causes  of  his  fjiilure  to  obtain  sucli  action. 

The  follou'ing  provisions  relating  to  equity  practice  are  to  be 
found  in  the  Act  of  1st  of  June,  1872  : 

Sec.  7.  That  whenever  notice  is  given  of  a  motion  for  an 
injunction  out  of  a  circuit  or  district  court  of  the  b  iiited 
States,  the  court  or  judge  thereof  may,  if  there  appear  to  be 
danger  of  irreparable  injury  from  delay,  grant  an  order  re- 
straining the  act  sought  to  be  enjoined  until  the  decision  upon 
the  motion.  Such  order  may  be  granted  with  or  without 
security,  in  the  discretion  of  the  court  or  judge:  Provided, 
That  no  justice  of  the  Supreme  Court  shall  hear  or  allow  any 
application  for  an  injunction  or  restraining  order  except  within 
the  circuit  to  which  he  is  allotted,  and  in  causes  pending  in 
the  circuit  to  which  he  is  allotted,  or  in  such  causes  at  such 
place  outside  of  the  circuit  as  the  ]»arties  may  in  writing  sti])- 
ulate,  except  in  causes  where  such  a]>})lication  cannot  1)0  heard 
by  the  circuit  judge  of  the  circuit,  or  the  disti'ict  judge  of  the 
district. 

Sj:c.  V-\.  That  when  in  any  suit  in  equity,  commenced  in 
any  court  in  the  United  States,  to  enforce  any  legal  or  equit- 
able lien  or  claim  against  real  or  personal  ])roperty  within  Ihi' 
di.sti'ict  wIkmo  such  suit  is  brought,  one  oi-  niorc^  of  tlu^  di'lend- 
ants  therein  shall  not  be  an  inhabitant  of  or  found  within  the 
said  disli-ict,  oi-  shall   not  voluntarily  aji]>ear   therc^to,  it    shall 


58  EQUITY    PLEADING. 

be  lawful  for  the  court  to  make  an  order  directing  such  absent 
defendant  to  appear,  plead,  answer,  or  demur  to  the  complain- 
ant's bill  at  a  certain  day  therein  to  be  designated,  which 
order  shall  be  served  on  such  absent  defendant,  if  practicable, 
wherever  found  ;  or  where  such  personal  service  is  not  prac- 
ticable, such  order  shall  be  published  in  such  manner  as  t!ie 
court  shall  direct ;  and  in  case  such  absent  defendant  shall 
not  appear,  plead,  answer,  or  demur  within  the  time  so  limited, 
or  within  some  further  time  to  be  allowed  by  the  court,  in  its 
discretion,  and  upon  proof  of  the  service  or  publication  of  said 
order,  and  of  the  performance  of  the  directions  contained  in 
the  same,  it  shall  be  lawful  for  the  court  to  entertain  jurisdic- 
tion, and  proceed  to  the  hearing  and  adjudication  of  such  suit 
in  the  same  manner  as  if  such  absent  defendant  had  been 
served  with  process  within  the  said  district;  but  such  adjudi- 
cation shall,  as  regards  such  absent  defendant  without  appear- 
ance, affect  his  property  within  such  district  only. 

Hide  23. 

The  prayer  for  process  of  subpoena  in  the  bill  shall  contain 
the  names  of  all  the  defendants  named  in  the  introductory 
part  of  the  bill,  and  if  any  of  them  are  known  to  be  infants 
under  age,  or  otherwise  under  guardianship,  shall  state  the 
fact,  so  that  the  court  may  take  order  thereon,  as  justice  may 
require  upon  the  return  of  the  process.  If  an  injunction,  or 
a  writ  of  ne  exeat  re(/no,  or  any  other  special  order,  pending 
the  suit,  is  asked  for  in  the  prayer  for  relief,  that  shall  be 
sufficient,  without  repeating  the  same  in  the  prayer  for  process. 

Biilc  42. 

The  note  at  tlie  foot  of  the  bill,  specifying  the  interroga- 
tories which  each  defendant  is  required  to  answer,  shall  be 
considered  and  treated  as  part  of  the  bill,  and  the  addition  of 
any  such  note  to  the  bill,  or  any  alteration  in  or  addition  to  such 
note,  after  the  bill  is  filed,  shall  be  considered  and  treated  as 
an  amendment  of  the  bill. 


HARRISON    V.    NIXON.  o!) 

Whenever,  under  these  rules,  an  oal^h  is  or  may  be  required 
to  be  taken,  the  party  may,  if  eonscientiously  scrupulous  of 
taking  an  oath,  in  lieu  thereof  make  solemn  affirmation  to  the 
truth  of  the  facts  stated  by  him. 

liule   *4. 

Every  bill  shall  contain  the  signature  of  counsel  aimexed 
to  it,  which  shall  be  considered  as  an  affirmation  on  his  j)art 
that,  upon  the  instructions  given  to  him  and  the  case  laid 
before  him,  there  is  good  ground  for  the  suit,  in  the  manner 
in  which  it  is  framed. 

HA RKISOX  r.  NIXON. 

(9  Peters,  483-540.     1835.) 

Opinion  by  Mr.  Justice  Story. 

Statement  of  Facts. — This  is  the  case  of  an  appeal  from  a 
decree  of  the  circuit  court  of  the  district  of  Pennsylvania  in  a 
suit  in  equity.  The  bill  was  filed  by  Samuel  Packer,  and 
asserts  that  one  Matthias  Aspden,  a  citizen  of  Pennsylvania, 
made  his  will,  dated  in  Philadelphia  on  the  6th  of  December, 
1791;  and  thereby  bequeathed  all  his  estate,  real  and  personal, 
to  his  heir  at  law,  and  afterwards  died  in  August,  1824  ;  and 
his  will  was  proved  and  letters  testamentary  were  taken  out 
in  Pennsylvania  by  the  appellee,  under  which  he  has  received 
large  sums  of  money  ;  and  the  bill  then  asks  for  a  decree  in 
favor  of  Packer,  who  asserts  himself  to  be  the  true  and  only 
heir  at  law  of  Matthias  Aspden,  and  that  he  is  solely  entitled 
under  the  bequest.  The  answer  of  the  executor  states,  fi'om 
information  and  belief,  that  the  testator  was  born  in  Pliihi- 
delphia,  which  was  the  residence  of  his  parents,  about  1750; 
that  he  continued  to  reside  there,  doing  business  as  a  mer- 
chant with  some*  success,  before  he  was  twenty-one  years  of 
age;  that  before  the  breaking  out  of  the  war  between  Great 
Britain  and  America  in  177G,  being  still  a  minor,  he  went  to 
England,  with  wliat  view  the  executor  is  notj  from  his  own 
knowledge,  able  to  say,  but  he  believes  that  he  went  with  an 
impression  that  the  power  of  Great  liritain  must  soon  prevail 
in  putting  down  resistance  in  America;  that  the  testator  sub- 
sequently  came   several   times  to  the   United  Sfntos,  and  in- 


60  EQUITY    I'Li:ADIN(i. 

vested  large  sums  in  goveiiuiieiit  stocks  and  other  securities; 
but  whether  after  so  returning  to  the  United  States  the  testator 
■went  back  to  England  as  his  home,  or  only  for  the  purpose  of 
superintending  his  property,  and  whether  the  testator  did  in 
fact  change  his  domicile,  the  executor  (save  and  except  as  ap- 
pears from  the  facts)  doth  not  know,  and  is  unable  to  answer; 
but  he  believes  that  the  testator,  when  in  England,  considered 
hnnself  as  an  alien,  etc.;  and  he  died  in  King  street,  Holborn, 
London.  The  answ^er  also  states  that  the  executor  proved  the 
will  and  took  out  letters  testamentary  in  England;  and  states 
certain  proceedings  had  upon  a  bill  in  chancery  in  England 
by  one  John  Aspden  there,  claiming  to  be  the  heir  at  law  of 
the  testator  ;  and  annexes  to  his  answer  a  copy  of  the  bill. 
He  also  alleges  that  several  other  persons  have  made  claims 
to  the  same  property  as  next  of  kin  of  the  testator,  of  whose 
names,  etc.,  he  annexes  a  schedule. 

Various  proceedings  were  had  in  the  circuit  court  of  Penn- 
sylvania, and  a  reference  was  made  to  a  master  to  examine 
and  state  who  were  all  the  heirs  and  next  of  kin  of  the  tes- 
tator. The  master  made  a  report,  which  was  afterwards  con- 
firmed, and  thereupon  a  final  decree  was  made  by  the  court 
in  favor  of  John  Aspden,  of  Lancashire,  in  England,  one  of 
the  persons  who  made  claim  before  the  master,  as  entitled  as 
heir  at  law  to  the  personal  estate  in  the  hands  of  the  executor, 
and  the  claims  of  the  other  persons  claiming  as  heirs  at  law 
were  dismissed  ;  and  the  present  appeal  has  been  taken  by 
several  of  these  claimants.  The  cause  having  come  before 
this  court  for  argument  upon  the  merits,  a  question  occurred 
whether  the  frame  of  the  bill,  taken  by  itself,  or  taken  in  con- 
nection with  the  answer,  contained  sufficient  matter  upon 
which  the  court  could  proceed  to  dispose  of  the  merits  of  the 
cause  and  make  a  final  decision. 

The  bill  contains  no  averment  of  the  actual  domicile  of  the 
testator  at  the  time  of  the  making  of  his  will,  or  at  the  time 
of  his  death,  or  at  any  intermediate  period.  Nor  does  the 
answer  contain  any  averments  of  domicile  which  suppl}'  these 
defects  in  the  bill,  even  if  it  could  .so  do,  as  we  are  of  opinion, 
in  point  of  law,  it  could  not.  Every  l)ill  iiuist  contain  in 
it.self  sufficient  matters  of  fact,  per  sc,  to  maintain  the  case  of 
the  iJaintiff,  so  that  the  same  may  be  put  in  issue  by  ihe 
answer  and  established  by  the  ])roofs.  The  ])roofs  must  be 
according  to  the  allegations  of  the  jKii'ties,  and   if  the  proofs 


HAKIMSON     \-.     NIXON.  (\] 

go  to  matters  iidt  witliiii  llir  allcuatioiis  the  court  cannot 
judicially  act  u[)on  them  as  a  iiround  lor  its  decision,  fur  I  lie 
pleadings  do  not  put  them  in  contestirtioii.  The  alUynfa  and 
the  probata  must  reciprocally  meet  and  conform  to  each  other. 
The  case  cited  at  the  bar  of  Matthew  v.  Ilanbury,  2  Vern., 
187,  does  not  in  any  manner  contradict  this  doctrine.  The 
proofs  there  offered  were  founded  upon  allegations  in  the  bill, 
and  went  directly  to  overthrow  the  ccmsideration  of  the  bonds 
set  uj)  in  the  answer,  in  opposition  to  the  allegations  of  the 
bill,  the  latter  having  asserted  that  the  bonds  were  obtained 
by  threats  and  undue  means,  and  not  for  any  real  debt  or 
other  good  consideration.  Is,  then,  any  averment  of  the 
actual  domicile  of  the  testator,  under  the  circumstances  of  the 
present  case,  proper  and  necessary  to  be  made  in  the  bill,  in 
order  to  enable  the  court  to  come  to  a  final  decision  upon  the 
merits?  AVe  think  that  it  is,  for  the  reasons  which  will  be 
presently  stated. 

The  point  was  never  brought  before  the  circuit  court  for 
consideration,  and,  consequently,  was  not  acted  on  by  that 
court.  It  did  not  attract  attention  (at  least,  as  far  as  we 
know),  on  either  side,  in  the  argument  there  made,  and  it  was 
probably  passed  over  (as  we  all  know  matters  of  a  similar 
nature  are  everywhere  else)  from  the  mutual  understanding 
that  the  merits  were  to  be  tried,  and  without  any  minute 
inquiry  whether  the  merits  were  fully  spread  upon  the  record. 
It  is  undoubtedly  an  inconvenience  that  the  mistake  has 
occurred  ;  but  we  do  not  see  how  the  court  can  on  this  ac- 
count dispense  with  what  in  their  judgment  the  law  will 
otherwise  require. 

The  present  is  the  case  of  a  will,  and,  so  far  at  least  as  the 
matter  of  the  bill  is  concerned,  is  exclusively  confined  to  per- 
sonalty bequeathed  by  that  will.  And  the  court  ai'e  called 
upon  to  give  a  construction  to  the  terms  of  a  will,  and  in  an 
especial  manner  to  ascertain  who  is  meant  l)y  the  words  "  heir 
at  law  "  in  the  leading  bequest  in  the  will.  The  language  of 
wills  is  not  of  universal  interpretation,  having  the  same  i)re- 
cise  import  in  all  countries  and  under  all  circumstances. 
They  are  supposed  to  speak  the  sense  of  the  testator  according 
to  the  received  laws  or  u.sages  of  the  country  where  he  is 
domiciled,  by  a  sort  of  tacit  reference,  unless  there  is  some- 
thing in  the  language  which  repels  or  controls  such  a  con- 
clusion.    In  regard  to  })crsonalty  in  an  especial  manner,  the 


62  EQUITY    PLEADING. 

law  of  the  place  of  the  testator's  domicile  governs  in  the  dis- 
tribution thereof,  and  will  govern  in  the  interpretation  of  wills 
thereof,  unless  it  is  manifest  that  the  testator  had  the  laws  of 
some  other  countr}''  in  his  own  view. 

No  one  can  doubt  if  a  testator,  born  and  domiciled  in  Eng- 
land during  his  whole  life,  should  by  his  will  give  his  per- 
sonal estate  to  his  heir  at  law,  that  the  descriptio  jjersonaz  would 
have  reference  to  and  be  governed  by  the  import  of  the  terms 
in  the  sense  of  the  laws  of  England.  The  import  of  them 
might  be  very  different  if  the  testator  were  born  and  domiciled 
in  France,  in  Louisiana,  in  Pennsylvania  or  in  Massachusetts. 
In  short,  a  will  of  personalty  speaks  according  to  the  laws  of 
the  testator's  domicile,  where  there  are  no  other  circumstances 
to  control  their  application  ;  and  to  raise  the  question  what 
the  testator  means,  v.'e  must  first  ascertain  what  was  his  domi- 
cile, and  whether  he  had  reference  to  the  laws  of  that  place  or 
to  the  laws  of  any  foreign  country.  Now  the  very  gist  of  the 
present  controversy  turns  upon  the  point  who  were  the  person 
or  persons  intended  to  be  designated  by  the  testator  under  the 
appellation  of  "  heir  at  law."  If,  at  the  time  of  making  his 
will  and  at  his  death,  he  was  domiciled  in  England  and  had 
a  reference  to  its  laws,  the  designation  might  indicate  a  very 
different  person  or  persons  from  what  might  be  the  case  (we 
do  not  say  what  is  the  case)  if,  at  the  time  of  making  his  will 
and  of  his  death,  he  was  domiciled  in  Penns3'lvania.  In 
order  to  raise  the  question  of  the  true  interpretation  and 
designation,  it  seems  to  us  indispensable  that  the  country  by 
whose  laws  his  will  is  to  be  interpreted  should  be  first  ascer- 
tained, and  then  the  inquiry  is  naturally  presented  what  the 
provisions  of  those  laws  are. 

If  this  be  the  true  posture  of  the  present  case,  then  the  bill 
should  allege  all  the  material  facts  upon  which  the  plaintiff's 
title  depends ;  and  the  final  judgment  of  the  court  must  be 
given  so  as  to  put  them  in  contestation  in  a  proper  and  regular 
manner.  And  we  do  not  perceive  how  the  court  can  dispose 
of  this  cause  without  ascertaining  where  the  testator's  domicile 
was  at  the  time  of  his  making  his  will  and  at  the  time  of  his 
death  ;  and  if  so,  then  there  ought  to  be  suitable  averments  in 
the  bill  to  put  these  matters  in  issue. 

In  order  to  avoid  any  misconception,  it  is  proper  to  state 
that  we  do  not  mean  in  this  stage  of  the  cause  to  express  any 
opinion  what  would  be  the  effect  upon  the  interpretation  of 


jONKs   V.   ANi)i;i;\\s. '  03 

t]ie  will  it'  \\\o  domicik'  of  llic  testator  was  in  one  country  at 
the  time  of  his  making  his  will,  and  in  another  country  at  the 
time  of  his  death.  'J'his  j)oint  may  wv^ll  he  left  open  for  future 
consideration.  But  being-  of  opinion  that  an  averment  of  the 
testator's  domicile  is  indis[)ensab]e  in  the  bill,  we  think  the 
case  ouglit  to  be  remanded  to  the  circuit  court  for  the  j)urji()se 
of  having  suitable  amendments  ma(h>  in  this  ])articular;  and 
that  it  will  be  jjroper  to  aver  the  domicile  at  the  time  of  mak- 
ing the  will  and  at  the  time  of  the  death  of  the  testator,  and 
during  the  intermediate  period  (if  there  be  any  change),  so  that 
the  elements  of  a  full  decision  may  be  finally  brought  l)efore 
the  court.  The  petitions  of  the  claimants  should  contain 
similar  averments. 

It  appears  from  the  motions  wliicli  have  been  made  to  this 
court,  as  well  as  from  certain  ])roceedings  in  the  court  below, 
which  have  been  laid  before  us  in  support  thereof,  that  there  are 
certain  claimants  of  this  becjuest,  asserting  themselves  to  be 
heirs  at  law,  whose  claims  have  not  been  adjiidicated  upon  in 
the  court  below  on  account  of  their  having  been  presented  at" 
too  late  a  period.  As  the  cause  is  to  go  back  again  for  further 
proceedings,  and  must  be  again  opened  there  tor  new  allega- 
tions and  proofs,  these  claimants  will  have  a  full  opportunity 
of  presenting  and  proving  their  claims  in  the  cause  ;  and  we 
are  of  opinion  they  ought  to  be  let  into  the  cause  for  this  pur- 
pose. In  drawing  u|)  the  decree  remanding  the  cau.se,  leave 
will  be  given  to  them  accordingly.  The  decree  of  the  circuit 
court  is  therefore  reversed,  and  the  cause  is  remanded  to  the 
circuit  court  for  further  proceedings  in  conformity  to  this 
opinion. 

Mr.  Justice  Baldwin  dissented. 

JONES  r.  ANDREWS. 
( 10  Wallace,  327-334.     1 870. ) 

xA.ppEAL  from  U.  S.  Circuit  Court,  Western  District  of  Ten- 
nessee. 

Statement  of  Facts. — Andrews  leased  a  hotel  in  Mem- 
phis to  Reed  &  Bryson,  taking  their  notes  for  the  rent.  These 
sublet  to  Jones,  taking  his  notes  for  the  rent.  The  rent  not 
being  paid,  Andrews,  in  the  absence  of  Jones,  took  ])Osse.ssion 
of  the  hotel,  and  recovered  judgment  in  the  court  below 
against  Reed  &  Bryson  on  their  notes,  and  garnished  tlie  notes 
of  Jones.     Jones  then  filed  a  bill   in  the  same  court  for  an 


64  EQUITY    PLEADING. 

injunction,  describing  the  citizenship  of  the  parties  in  the 
caption  and  in  the  })rayer,  averring  Andrews  to  be  a  citizen  of 
New  York  and  Reed  &  Bryson  to  be  residents  of  Tennessee. 
Andrews  was  not  served  with  process,  but  came  in  and  moved 
that  the  bill  be  dismissed  for  want  of  jurisdiction  and  for  want 
of  equity. 

Opinion  by  Mr.  Justice  Bradley. 

On  the  question  of  jurisdiction  over  the  parties,  the  appel- 
lees contend  :  1st.  That  the  citizenship  of  the  parties  was  not 
sufficiently  alleged  in  the  bill.  2d.  That,  if  suflficiently 
alleged,  the  court  had  no  jurisdiction  over  Andrews,  the  prin- 
cipal defendant,  who  was  a  citizen  of  New  York,  and  not  a 
citizen  of  Tennessee,  where  the  suit  was  brought. 

Although  the  allegation  of  citizenship  is  not  made  in  pre- 
cise and  technical  form,  we  consider  it  sufficiently  explicit  to 
sustain  the  jurisdiction  of  the  court,  if  the  citizenship  disclosed 
by  the  allegation  does  not  displace  that  jurisdiction.  It  is 
more  explicit  than  the  allegation  in  the  case  of  Express  Com- 
pany V.  Kountze,  8  Wall.,  342,  which  was  sustained  by  the 
court.  All  that  is  necessary  is,  that  it  fairly  appear  by  the 
bill  of  what  states  the  respective  parties  are  citizens.  In  this 
case  the  form  of  the  allegations  leaves  no  room  for  reasonable 
doubt. 

The  other  exce})tion,  that  Andrews,  the  principal  defendant, 
was  not  a  citizen  of  the  state  where  the  suit  was  brought,  is 
entitled  to  more  weight.  Though  the  constitution  declares 
that  the  judicial  power  of  the  federal  government  shall  extend 
to  controversies  between  citizens  of  different  states,  which 
would  embrace  the  case  before  us  (the  plaintiff  being  a  citizen 
of  Georgia,  and  Andrews  a  citizen  of  New  York),  yet  congress 
has  not  established  any  court,  except  the  circuit  court,  to  take 
cognizance  of  such  cases ;  and,  by  the  judiciar}^  act  of  1789, 
which  establishes  that  court,  congress  only  invested  it  with 
jurisdiction  of  cases  where  the  suit  is  between  a  citizen  of  the 
state  where  the  suit  is  brought,  and  a  citizen  of  another  state 
(section  11),  and  moreover  declared  that  no  civil  suit  should 
be  brought  before  said  court  against  an  inhabitant  of  the 
United  States,  by  any  original  process,  in  any  other  district 
than  that  whereof  he  is  an  inhabitant,  or  in  which  he  shall 
be  found  at  the  time  of  serving  the  writ.  The  case  is  certainly 
not  within  the  purview  of  this  statute.  The  suit  is  brought 
in  west  Tennessee,  and  neither  .Jones,  the  complainant,  nor 


JONKS    V.     ANDKKWS.  05 

Andrews,  the  deieiulaiit,  is  a  eitizeii  of  (hat  state.  I)i'si(h's, 
the  suit  is  brought  against  An(h\'\vs  in  a  (Hstriet  of  which  he 
is  not  an  inhabitant,  and  in  wliieh  h6  was  not  Ibiind  at  iho 
time  of  serving  the  writ.  Under  the  act  of  178*J,  and  tlie 
ruhng  of  the  early  cases,  the  court  woukl,  prima  facie,  be 
without  jurisdiction.  According  to  those  cases  tlie  phiintitr, 
or  each  of  the  plaintiffs,  if  more  than  one,  must  be  able  to  sue 
each  of  the  defendants,  if  more  than  one. 

But  the  act  of  February  28,  1831),  by  imi)lication,  confers 
jurisdiction  over  non-residents  of  the  district  where  the  suit  is 
brought,  if  they  voluntarily  appear  therein.  The  suit  can 
proceed  against  them  if  they  voluntarily  appear,  or  without 
them  if  they  are  not  necessary  parties.  If,  however,  they  are 
necessary  parties,  and  do  not  voluntarily  appear,  thedifKcuUy 
remains  the  same  as  before  the  act  of  1839  was  passed.  Tobin 
V.  Walkinshaw,  1  jNIcAL,  2().  In  this  case  Andrews  ivas  a 
necessary  party,  and  he  was  not  a  resident  of  the  district,  and 
was  not  served  with  process,  but  he  did  voluntarily  appear. 
It  is  true  that  as  soon  as  he  appeared,  he  moved  a  dismissal 
of  the  bill  on  two  grounds:  (1)  That  it  did  not  show  such 
facts  in  regard  to  the  citizenship  or  residence  of  the  defendants 
as  to  give  the  court  jurisdiction.  (2)  That  it  contained  no 
equity.  Whether,  if  he  had  made  the  motion  on  the  first 
ground  alone,  he  would  have  waived  his  personal  exemption, 
it  is  not  necessary  to  decide.  His  moving  to  dismiss  for  want 
of  equity  was  clearly  a  waiver;  and  he  was  proi)erly  required 
to  answer  the  bill.  After  this  the  question  of  jurisdiction 
over  the  person  was  at  an  end,  and  the  decree  of  the  circuit 
court,  dismissing  the  bill  for  want  of  jurisdiction,  must  be 
reversed. 

But  the  ease  is  stronger  than  this.  The  jurisdiction  of  the 
court  did  not  depend  on  the  residence  or  citizcnshij)  of  the 
parties.  The  suit  is,  in  its  nature,  not  an  original  but  a 
defensive  or  supplementary  suit,  like  a  cross-bill,  or  a  bill 
filed  to  enjoin  a  judgment  of  the  same  court.  The  bill  is  filed 
for  an  injunction  against  the  garnishment  proceedings  under 
the  suit  at  law  for  the  delivery  up  of  the  com})lainant's  notes, 
and  for  the  establishment  of  his  set-off  against  Andrews. 
This  is,  in  substance,  its  character,  and  if  the  facts  charged 
furnish  a  sufficient  ground  of  equity  for  the  relief  asked,  as  to 
which  the  court  refrains  from  expressing  any  opinion,  the 
complainant  had  a  right  to  file  it  against  the  defendants,  and 
5 


66  EQUITY    PLEADING. 

the  court  had  a  right  to  take  cognizance  of  it  as  a  defensive  or 
supplementary  proceeding,  growing  out  of  and  having  direct 
reference  to  the  proceedings  of  the  defendants  in  the  same 
court  against  him.  The  case,  in  this  respect,  as  before  said, 
is  analogous  to  that  of  a  cross-bill  or  bill  of  review,  or  a  bill 
for  injunction  against  a  judgment  at  law  in  the  same  court,  of 
which  the  court  has  jurisdiction  irrespective  of  the  residence 
of  the  parties.  Logan  v.  Patrick,  5  Cranch,  288  ;  Simms  v. 
Guthrie,  9  id.,  25  ;  Clarke  v.  Mathewson,  12  Pet.,  164; 
Dunlap  I'.  Stetson,  4  Mason,  349.  As  to  bills  for  injunction 
against  judgments  at  law  rendered  in  the  same  court. 
Justice  Story,  in  Dunlap  v.  Stetson,  says :  "I  believe  the 
general,  if  not  universal,  practice  has  been  to  consider  bills 
of  injunction  upon  judgments  in  the  circuit  courts  of  the 
United  States,  not  as  original,  but  as  auxiliary  and  dependent 
suits,  and  properly  sustainable  in  that  court  which  gave  the 
original  judgment,  and  has  it  completely  under  its  control. 
The  court  itself  possesses  a  power  over  its  own  judgments  by 
sta3'ing  execution  thereon;  and  it  would  be  very  inconvenient 
if  it  did  not  possess  the  means  of  rendering  such  further 
redress  as  equity  and  good  conscience  required." 

Let  the  decree  of  the  circuit  court  be  reversed,  and  the 
cause  remitted  for  further  proceedings,  each  party  to  pay  his 
own  costs  on  this  appeal. 

Decree  accordingly. 

DES  MOINES  &  MINNEAPOLIS  KAILEOAD  COMPANY  v.  ALLEY. 
(Circuit  Court  for  Iowa  :  3  McCrary'  589-591.     1882.) 

Opinion  by  McCrary,  J. 

Statement  of  Facts. — This  is  a  suit  brought  to  set  aside  a 
deed  executed  by  the  complainant  to  the  respondent,  John  B. 
Alley,  on  the  23d  of  May,  1879,  conveying  two  thousand  three 
hundred  and  sixty-two  acres  of  land.  The  amended  bill 
charges  that,  at  the  time  of  said  conveyance,  the  respondent, 
John  B.  Alley,  was  the  owner  of  the  majority  of  the  stock  of 
the  corporation,  and  by  reason  of  that  ownership  exercised  a 
controlling  influence  over  the  officers  and  directors  of  the  com- 
plainant corporation,  whereby  he  induced  the  board  of  direc- 
tors and  the  president  of  the  corporation  to  consent  to  the  said 
conveyance,  and  to  execute  a  deed  good  and  sufficient  in  form. 
It  is  further  alleged  that  the  said  respondent,  John  B.  Alley, 
fraudulently    procured    and    caused     said    conversance  to    be 


I 


DES  MOINES  &  MINNEAPOLIS  KAILKOAD  CO.   V.  ALLEY.  67 

executed.  With  respect  to  the  coiisidcTation  j)ai(l  hy  tlie  said 
Alley  for  said  conveyance,  there  are  two  allegations  in  the 
amended  bill  as  follo\v.s  :  It  is  first  alleged  "  That,  in  truth  and 
in  fact,  the  said  defendant  did  not  })aY  anything  whatever  for 
said  lands;  that  the  books  of  said  company  were  then  under 
his  charge  and  control,  and  that  he  caused  to  be  cliarged  to 
himself,  on  account  of  said  lands  and  said  conveyance,  the 
sum  of  $4,600,  and  over  against  said  charge  on  said  book  he 
caused  to  be  credited  certain  fraudulent  entries." 

If  the  allegation  stojjped  here,  it  would  amount  to  a  charge 
that  the  conveyance  was  without  any  consideration  wliatever, 
and  would  be  entirely  sufficient.  But  the  bill  further  avers  as 
follows:  "  That  if,  in  truth  and  fact,  it  shall  be  made  to  ap})ear 
that  any  portion  or  all  of  said  $4,600  was  in  any  manner  paid 
by  the  said  Alley,  by  just  and  proper  credits,  then  the  said  sum 
or  price  of  said  lands  was,  and  is,  grossly  inadequate  to  its  true 
value  ;  and  the  said  defendant,  by  reason  of  his  relationship  to 
the  said  company  plaintiff,  and  such  inadequacy  of  price,  is 
bound  to  surrender  said  lands  to  the  plaintiff.  That  said 
lands  were  then  worth,  as.  plaintiff  is  informed  and  believes, 
$10,000  and  more,  and  have  been  since  then  steadily  increas- 
ing in  value ;  and  defendant  well  knew  that  said  lands  were 
worth  much  more  than  the  sum  of  $4,600,  and  that  they 
would  greatly  increase  in  value  from  that  time  forward." 

It  is  necessary  that  the  several  allegations  of  the  amended 
bill  should  be  harmonious  and  consistent  with  each  other. 
The  amended  bill  would  be  sufficient  if  it  distinctly  alleged 
either  of  three  things,  to  wit:  1.  That  the  conveyance  was 
wholly  without  consideration  ;  or  2.  That  it  was  fraudulent, 
and  there  was  a  consideration,  which  the  complainant  has 
offered  to  return  to  the  respondent  John  B.  Alley  ;  or  3.  That 
complainant  is  not  informed,  and  has  no  means  of  ascertaining, 
whether  there  was  a  consideration,  or  what  the  value  of  the 
consideration  was,  if  there  was  any,  and  that  these  facts  are 
peculiarly  within  the  knowledge  of  the  defendant,  John  B. 
Alley. 

If  the  case  is  placed  upon  the  latter  ground,  then  the 
amended  bill  should  pray  a  discovery  of  the  facts,  and  should 
offer  to  return  any  consideration  actually  paid,  to  the  respond- 
ent John  B.  Alley,  as  soon  as  the  same  is  ascertained  and 
determined  by  the  court.  It  will  be  seen  that  it  is  necessary 
to  amend  the  bill  in  order  to  conform  to  the.se  suggestions. 


68  EQUITY    PLEADING. 

The  allegation  concerning  the  value  of  the  land  should  also 
be  made  specific.  It  is  not  sufficient  to  state  fiiat  the  com- 
plainant believes  the  land  to  be  worth  $10,000.  In  these 
respects,  and  to  this  extent,  the  demurrer  is  sustained,  and  the 
complainant  has  leave  to  amend  by  the  February  rules,  and 
will  serve  a  copy  of  his  amendment  upon  the  counsel  for 
respondent. 

FINLEY  V.  BANK  OF  THE  UNITED  STATES. 
(11  Wheaton,  304-308.     1826.) 

Opinion  by  Marshall,  C.  J. 

Statement  of  Facts. — This  is  a  bill  in  chancery,  brought 
by  the  Bank  of  the  United  States  against  James  Finley  to 
obtain  a  decree  for  tlie  sale  of  property  mortgaged  for  the 
security  of  a  debt  due  the  bank. 

The  mortgage  deed  was  executed  on  the  28th  of  September, 
1822,  and  contains  a  recital  of  debts  due  to  the  bank  to  the 
amount  of  |6,240,  on  account  of  which  a  note  was  executed 
on  that  day  to  the  bank  for  that  sum,  payable  sixty  days  after 
date.  At  the  November  term  of  the  circuit  court  of  the  United 
States  for  the  district  of  Kentucky  the  bill  was  filed,  stating 
the  consent  of  the  mortgagor  to  an  immediate  sale  of  the 
mortgaged  property,  although  the  day  of  payment  was  not 
arrived  ;  and  on  the  same  day  an  answer  was  filed  consenting 
to  a  decree  for  the  sale.  A  decree  was  immediately  entered 
by  consent  of  parties  directing  the  marshal  to  sell  the  prop- 
erij.  The  court  then  proceeds  to  direct  the  marshal,  after 
deducting  the  expenses  of  sale,  his  commission  and  the  costs, 
to  pay  the  bank  the  sum  of  $6,240,  with  interest  from  the 
date  of  the  note.  The  sale  was  made  in  pursuance  of  the 
decree,  and  the  report  thereof  was  returned  to  the  court  by  the 
marshal. 

At  the  succeeding  term  William  Coleman  filed  his  petition, 
stating,  among  other  things,  that  he  held  a  prior  mortgage  on 
the  same  lands,  and  praying  that  he  might  be  made  a  party 
defendant  to  the  suit.  His  petition  was  rejected,  and  he 
prayed  an  appeal  to  this  court,  which  has  been  dismissed  as 
irregularly  granted.  After  dismissing  this  petition  the  circuit 
court  pronounced  a  decree  afiiirming  the  sale  made  by  the 
marshal,  and  directing  the  credit  to  which  Finley  should  be 
entitled  for  the  money  paid  out  of  its  proceeds  to  the  bank. 
This  decree  also  considers  the  debt  due  to  the  bank  as  amount- 
ing to  $6,240,  with  interest  from  date  of  the  note. 


FINLEY    V.     HANK    OF    THE    UNITED    STATES.  09 

The  mortgage  to  Coleman  is  tiled,  and  ap[)ears  to  be  dated 
three  days  anterior  to  that  made  to  the  bank.  A  suit  to  obtain 
a  sale  of  the  premises  was  instituted  in  the  state  court  in 
March,  1823,  and  was  depending  when  the  final  decree  was 
pronounced  at  the  suit  of  the  bank.  After  the  linal  decree 
had  been  pronounced,  Finley  filed  a  petition  praying  that  the 
sale  and  decree  might  be  set  aside ;  alleging,  among  other 
reasons  therefor,  that  Coleman,  the  prior  mortgagee,  had  not 
been  made  a  l)arty,  althongli  the  existence  of  his  mortgage 
was  known  to  the  bank. 

The  prayer  of  the  petition  was  rejected,  and  Finley  has 
appealed  to  this  court.  The  counsel  for  the  plaintiff  in  error 
insists  that  this  decree  ought  to  be  reversed,  because  it  was 
pronounced  in  a  case  in  which  proper  parties  were  not  before 
the  court. 

It  cannot  be  doubted  that  Coleman  ought  regularly  to  have 
been  a  party  defendant,  and  that,  had  the  existence  of  his 
mortgage  been  known  to  the  court,  no  decree  ought  to  have 
been  })ronounced  in  the  cause  until  he  was  iiitroduced  into  it. 
But  this  fact  was  kept  out  of  view  until  the  decree  was  pro- 
nounced, the  sale  made,  the  money  paid  to  the  creditor,  and 
the  rei)ort  of  his  proceedings  returned  by  the  marshal.  If  the 
manner  in  which  the  sale  was  made  and  tlie  money  dii'ccted 
to  be  paid  be  unusual  and  exceptionable,  it  was  done  by  con- 
sent, and  the  error  is  not  imputable  to  the  court. 

The  only  question  presented  to  the  judges  by  this  j)etiti()n 
was  whether  a  decree,  completely  executed  by  a  sale  of  the 
property  and  payment  of  the  purchase  money,  sliould  be  set 
aside  and  the  suit  reinstated,  for  the  purpose  of  introducing  a 
party  who  ought  regularly  to  have  been  an  original  defendant, 
but  who  was  not  shown,  by  any  proceedings  in  the  cause,  con- 
cerned in  interest  until  the  decree  was  made  and  executed. 
There  would,  certainly,  be  great  inconvenience  in  such  a 
practice;  and,  if  it  be  admissible  in  any  case,  on  wliich  the 
court  gives  no  opinion,  it  must  be  where  the  mi.schief  resultiug 
from  a  rejection  of  the  petition  would  be  iri'eniediable.  This 
is  not  shown  to  be  a  case  of  that  description.  Coleman's 
mortgage  cannot  be  affected  by  this  decree.  II is  rights  can- 
not be  extinguished  by  it.  His  suit  in  the  state  court  will 
proceed  as  if  this  decree  had  never  been  pronounced.  The 
purchasers  under  the  decree  of  tlie  circuit  court  take  the  land 
suijject  to  prior  incumbrances,  and   have,  ])i'oba]>ly,  taken  this 


70  EQUITY    PLEADING. 

incumbrance  into  consideration  in  the  price  given  for  the  land. 
But,  be  this  as  it  may,  they  do  not  complain  or  object  to  their 
purchase  in  consequence  of  the  cloud  hanging  over  the  title. 
Coleman's  rights  cannot  be  affected  ;  and  if  Finley  has  suffered 
by  selling  his  land  subject  to  a  lien,  it  is  an  injury  which  he 
has  knowingly  brought  upon  himself.  This  is  not,  then,  a 
case  for  such  an  extraordinary  measure  as  opening  a  decree 
made  by  consent,  after  it  has  been  carried  into  execution,  on 
the  petition  of  the  party  who  has  given  that  consent.  We  do 
not  think  the  decree  is  erroneous  because  the  prior  mortgagee 
was  not  made  a  defendant,  that  fact  not  having  appeared  to 
the  court  until  the  decree  was  completely  executed. 

But  in  the  disposition  of  the  money  produced  by  the  sale  a 
small  mistake  a})pears  to  have  been  made.  There  were  some 
previous  debts  due  from  Finley  to  the  bank,  amounting  to 
$6,240,  which  appear  to  have  been  absorbed  in  the  note  given 
for  that  sum,  on  the  28th  of  September,  1822,  payable  sixty 
days  after  date,  to  secure  the  payment  of  which  the  mortgage 
deed  was  executed.  If  this  note  carried  interest  from  its  date, 
that  fact  does  not  appear,  and  cannot  be  presumed.  The 
mortgage  deed  does  not  purport  to  secure  the  payment  of  such 
interest.  Yet  the  decree  of  the  circuit  court  subjects  the  mort- 
gaged property  to  its  payment.  This  error  ought  to  be  cor- 
rected, and  may  yet  be  corrected  in  the  circuit  court.  It  does 
not  affect  the  sale.  In  all  other  respects  the  decree  is  to  be 
affirmed. 

VOSE  V.  BRONSON. 
(6  Wallace,  452-456.     1867.  ) 

Appeal  from  U.  S.  Circuit  Court,  District  of  Wisconsin. 

Statement  of  Facts. — The  La  Crosse  &  Milwaukee  Rail- 
road Company  issued  bonds  to  the  amount  of  $4,000,000,  and 
gave  a  mortgage  which  was  foreclosed.  The  bonds  having 
been  sold  at  heavy  discounts  were  scaled  down,  and  no  more 
being  allowed  to  the  bondholders  than  the  company  received 
for  them,  a  margin  remained.  Vose,  who  had  sold  material 
to  the  company  and  taken  bonds  at  eighty  cents  on  the  dollar, 
with  an  understanding  that  if  bonds  should  be  sold  at  a  lower 
rate  he  should  have  the  benefit  of  the  reduction,  intervened 
by  a  bill  in  equity,  claiming  the  benefit  of  that  agreement  and 
to  have  his  demand  satisfied  out  of  the  margin.  The  bill  was 
dismissed. 


VOSK    V.    BKONSOX.  71 

Opinion  by  Mk.  Justick  Davis. 

The  question  presented  by  this  record  is  of  easy  sokition. 
If  Vose  had  brought  suit  against  the  La  Crosse  &  Milwaukee 
Railroad  Company  for  a  breach  of  tlieir  contract,  the  inter- 
pretation of  it  would  have  been  a  })roper  subject  of  in([uiry, 
but  the  decision  of  this  case  does  not  de})end  on  the  disposi- 
tion of  that  question.  The  appellant  places  his  claim  for 
relief  on  his  right  to  have  an  outstanding  equity  with  the  La 
Crosse  Company  adjusted  in  the  foreclosure  suit,  and  his 
demand  attached  to  the  foot  of  the  mortgage.  To  do  this 
there  must  be  a  power  somewhere  to  eidarge  the  mortgage, 
and  where  is  it  lodged?  Certainly  not  with  the  trustees,  for 
their  duty  is  to  see  that  the  security  lield  by  them  for  their 
cestui  que  trusts  is  enforced  according  to  the  terms  of  the  deed. 
They  could  neither  enlarge  the  mortgage  nor  consent  to  its 
enlargement.     The  court  could  not  do  it,  nor  the  La  Crosse 

.  ...  A 

Company,  as  it  had  covenanted  with  the  trustees,  in  behalf  of 
the  bondholders,  tiiat  it  would  only  issue  $4,000,000  in  bonds. 
The  rights  of  the  bondholders  were  fixed  by  the  terms  of  the 
mortgage.  The  value  of  the  bonds  as  an  investment  de- 
pended in  a  great  measure  on  the  number  to  be  issued,  and 
doubtless  each  purchaser,  before  he  bought,  had  inibrmation 
of  the  character  of  the  security  on  which  he  relied.  The 
property  might  be  very  well  a  safe  security  for  $4,000,000, 
and  very  unsafe  for  any  additional  amount.  The  doctrine 
contended  for  would  utterly  destroy  the  "marketable  value  of 
all  corporate  securities.  No  prudent  man  would  ever  buy  a 
b®nd  in  the  market,  if  the  |)rovisions  made  for  its  ultimate 
redemption  could  be  altered  without  his  consent. 

But  it  is  said,  as  the  court  rendered  a  decrees  for  less  than 
the  face  of  the  bonds,  equity  will  stej)  in  and  allow  the 
appellant  to  apply  the  vacuum  of  principal  .secured  by  the 
mortgage  to  liquidate  his  claim.  The  answer  to  this  is,  that 
it  does  not  concern  the  ap})ellant  whether  the  court  rightfully 
or  otherwise  reduced  a  portion  of  the  bonds.  The  bond- 
holders, whose  bonds  were  thus  reduced,  are  the  only  parties 
in  interest  who  could  have  any  just  cause  of  complaint  against 
the  action  of  the  court,  and  if-  they  did  not  feel  aggrieved  no 
other  person  has  any  right  to  com])lain.  The  securit}'  of  the 
mortgage  extended  to  four  millions  of  bonds  onl}',  and  what- 
ever amount  the  court  should  ascertain  was  due  on  those  four 
millions  was  the  amount  secured,  and  no  more. 


72  EQUITY    PLEADING. 

If  Vose  had  been  made  a  party  defendant  to  the  foreclosure 
suit,  the  decree  would  have  been  the  same.  But  he  was  not  a 
necessary  party  to  tliat  suit.  The  trustees,  as  the  representa- 
tives of  all  the  bondholders,  acted  for  him  as  well  as  the 
others.  It  would  be  impracticable  to  make  the  bondholders 
parties  in  a  suit  to  foreclose  a  railroad  mortgage,  and  there  is 
no  rule  in  equity  which  requires  it  to  be  done. 

Decree  affirmed. 

JACKSON  V.  ASHTON. 
(8  Peters,  148-149.     1834.) 

AppExVI.  from  U.  S.  Circuit  Court,  District  of  Pennsylvania. 
•  Statement  of  Facts. — In  the  caption  of  the  l)ill  in  this 
case  the  complainants  were  described  as  citizens  of  Virginia, 
and  the  defendant  as  a  citizen  of  Pennsylvania.  In  the  bill  it 
was  alleged  that  the  complainants  were  citizens  of  Virginia, 
but  the  defendant  was  described  as  "  William  E.  Ashton,  of  the 
city  of  Philadelphia." 

Opinion  by  Marshall,  C.  J. 

The  title  or  caption  of  the  bill  is  no  part  of  the  bill,  and 
does  not  remove  the  objection  to  the  defects  in  the  pleadings. 
The  bill  and  proceeding  should  state  the  citizenship  of  the 
parties,  to  give  the  court  jurisdiction  of  the  case. 

The  only  difficulty  which  could  arise  to  the  dismissal  of  the 
bill  presents  itself  upon  the  statement  "  that  the  defendant  is 
of  Philadelphia."  This,  it  might  be  answered,  shows  that  he 
is  a  citizen  of  Pennsylvania.  U  this  were  a  new  question,  the 
court  might  decide  otherwise  ;  but  the  decision  of  the  court,  in 
cases  which  have  heretofore  been  before  it,  has  been  express 
upon  the  i)oint ;  and  the  bill  must  be  dismissed  for  want  of 
jurisdiction. 

WILSON  V.  GRAHAM. 
(Circuit  Court  for  Pennsylvania  :  4  Washington,  53-59.     1821.) 

Statement  of  Facts. — This  was  a  libel  to  enforce  against 
Graham  a  decree  rendered  in  Rhode  Island  against  a  box  of 
silk,  etc.,  condemned  as  prize,  which,  it  was  asserted,  had  come 
to  the  hands  of  Graham.  Graham  i)leaded  that  he  had  never 
been  summoned  to  appear  in  the  Rhode  Island  court ;  that  he 
was  not  a  citizen  of  that  state,  nor  had  he  been  found  within  it. 
Plaintiff  demurred  to  this  plea.  The  libel  was  filed  in  the 
district  court  and  aj)penled  from  Si  pro  forma  decree. 


WILSON    V.    (IKAIIA.M.  73 

Opinion  by  Washington,  J. 

This  case  turns  exclusively  upon  the  (picstion  wiielher  the 
circuit  court  for  the  disti-ict  of  Rhode, Island  had  jurisdiction 
in  the  case  wherein  tiie  decree  which  this  libel  seeks  to  enforce 
was  made?  If  it  had,  then  it  is  clearly  conclusive  uj)on  this 
couit,  and  it  must  be  carried'into  efl'ect  against  (Jraham.  If 
there  was  a  def{>ct  of  juristliction  in  that  case,  it  is  admitted  by 
the  appellant's  counsel  that  the  decree  ought  not  to  bo  en- 
forced by  this  court. 

In  the  case  Ex  parte  Graham  [4  Wash.,  211],  which  termi- 
nated in  the  discharge  of  the  appellee  from  arrest,  under  the 
process  of  attachment  issued  by  the  circuit  court  of  Khode 
Island  in  this  very  case,  the  following  points  were  resolved  : 
1.  That  the  federal  circuit  and  district  courts  of  one  state  have 
no  authority  to  issue  process  into  aii}^  other  state  to  compel  an 
appearance  in  those  courts,  whether  in  a  matter  at  common 
law,  in  equity,  or  of  prize  or  no  prize.  2.  That  the  jurisdic- 
tion of  those  courts,  though  sitting  in  prize  causes,  is  limited 
in  point  of  locality  by  the  bounds  of  their  respective  districts, 
except  in  a  few  cases  particularly  provided  by  law.  3.  That 
it  is  essential  to  the  jurisdiction  of  those  courts  that  the  person 
or  tiling,  against  which  the  proceedings  are  directed,  should  be 
within  their  local  jurisdiction  ;  except  in  the  latter  case,  when 
the  thing  is  considered  as  being  constructively  within  their 
jurisdiction  ;  as  where  it  is  in  possession  of  the  captors,  though 
in  a  neutral  country.  4.  That  if  a  prize  proceeding  be  in- 
stituted against  the  person,  the  jurisdiction  is  excluded,  unless 
it  be  in  a  court  of  the  district  whereof  the  person  is  an  inhabi- 
tant, or  in  which  he  is  found  at  the  time  of  serving  the  process. 

If  these  principles  be  correct  (and  after  an  attentive  recon- 
sideration of  them  we  think  they  are),  it  follows  that  the  cir- 
cuit court  of  Rhode  Island  had  no  original  jurisdiction  over 
the  person  of  Peter  Graham,  because  the  process  of  that  court 
■could  not  legally  issue  into  this  district,  and  be  here  served 
upon  him;  nor  was  it  served  upon  him  in  that  district;  he 
was  not  bound  to  appear  and  to  make  himself  a  party  to  the 
suit.  Can  he,  then,  be  personally  bound  by  a  sentence  given 
in  a  suit  in  which  he  was  not  a  party,  nor  was  heard,  or 
could  be  heard,  in  his  defense?  Such  a  doctrine  cannot,  we 
think,  be  maintained.  It  is  repugnant  to  the  immutable 
dictates  of  justice  as  well  as  to  the  express  provisions  of  the 
eleventh  ^section  of  the  judicial  act,  whirli    pi'ovides  "  that  no 


74  EQUITY    PLEADING. 

civil  suit  sluill  be  brouglit  before  either  of  the  said  courts 
against  an  inhabitant  of  tlie  United  States  by  any  original 
process  in  any  other  district  than  that  whereof  he  is  an  in- 
habitant or  in  which  he  shall  be  found  at  the  time  of  serving 
the  writ."  For.  if  the  court  can  exercise  jurisdiction  in  a  case 
and  over  a  person  who  has  not  and  could  not  be  legally 
served  witli  its  process,  the  above  provision  was  quite  nuga- 
tory, and  afibrded  no  protection  to  those  for  wlioni  it  was 
designed.  We  liave  no  doubt  but  that  the  learned  judge  who 
passed  that  decree,  jjresuming  tliat,  in  respect  to  the  process, 
all  had  been  rightfully  done  (for  Graham  had  no  person  to 
represent  him  in  court  and  to  j)l!ice  that  matter  in  its  true 
light),  had  no  reason  to  question  his  jurisdiction. 

I  admit  that  that  court  had  unquestionable  jurisdiction  over 
the  box  of  merchandise  alleged  to  be  in  the  possession  of 
Graham,  and  as  to  that  or  its  proceeds  the  sentence  of  that 
court  is  conclusive,  not  only  as  to  its  correctness,  but  as  to 
everything  which  it  professes  to  decide.  And  this  court  would 
not  hesitate  to  execute  that  decree  against  the  appellee  were  a 
proper  application  made  for  that  purpose,  and  if  it  appeared  in 
proof  that  he  had  or  has  the  thing  or  its  proceeds  in  his  pos- 
session. As  to  the  thing,  Graham  and  all  other  persons  claim- 
ing an  interest  in  it,  either  on  the  ground  of  property  or  of 
possession,  were  parties  to  that  suit,  and  were  reju'esented  in 
court  by  the  thing  which  was  the  subject  of  the  court's  juris- 
diction, although  they  were  never  served  with  process  nor  had 
even  heard  of  the  suit.  It  is  upon  this  ground  that  the  res  or 
its  proceeds  may  be  followed  by  the  decree  of  this  court  into 
the  hands  of  any  person  who  may  have  the  same  in  his  pos- 
session, and  who  is  personally  within  its  jurisdiction.  But 
whether  the  appellee  has,  or  ever  had,  in  his  possession  the 
merchandise  mentioned  in  the  decree,  or  its  proceeds,  is  a  fact 
which  this  court  cannot  consider  as  established  by  the  decree 
of  the  circuit  court  of  Rhode  Island,  inasmuch  as  the  appellee 
was  no  part}'^  to  that  suit. 

It  is  contended  that  the  decree  against  Graham  was  not 
founded  on  original  process,  but  was  merely  an  incident  to  the 
original  suit,  in  which  the  box  of  merchandise  was  condemned 
to  the  captors.  This  is  not  quite  correct,  since  the  sentence 
against  Graham  was  not  for  the  thing  condemned  or  its  pro- 
ceeds, but  for  a  gross  sum.  But  were  it  otherwise,  still  the 
suit  against  Graham  was  an  original  one,  in  which  the  ques- 


WILSON    V.    GliAHAM.  /5 

tion  to  lie  decided  was  not  whetlur  the  goods  were  legjilly 
condemned  to  the  captors,  but  whether  they  had  come  to  tlie 
hands  of  the  person  against  whom  the  suit  was  prosecuted. 
And  this  is  the  very  question  which,  for  (he  reasons  before 
mentioned,  that  court  was  incompetent  to  decide.  At  every 
turn  that  this  case  is  presented  to  our  view,  it  is  met  by  the 
objection  that  the  circuit  court  of  Rhode  Island  had  not  cogni- 
zance of  the  matter  upon  wliich  its  sentence  was  founded. 

Again,  it  is  said  that,  as  tlie  libel  in  this  ca.se  setting  forth 
the  sentence  of  condemnation,  as  well  as  the  decree  in  jier- 
sonani  against  Ciraham,  and  the  plea,  by  avoiding  the  chaige 
of  possession,  and  merely  alleging  matter  in  bar  of  the  relief 
prayed,  admits  the  fact  that  the  appellee  was  so  possessed, 
there  can  be  no  solid  rea.son  why  tlie  court  should  not  now 
execute  that  decree.  The  conclusion  of  the  counsel  is  clearly 
drawn  from  mistaken  premises.  The  libel  sets  forth  no  pait 
of  the  proceedings  of  the  Rhode  Island  court  but  the  com- 
plaint of  Wilson,  supported  by  proof  that  the  box  of  merchan- 
dise imported  in  the  Francis,  and  condemned  as  lawful  prize 
to  the  captors,  was  delivered  by  mistake  to  Stewart,  the  pro- 
ceedings against  him,  the  suggestion  and  proof  that  the  said 
merchandise,  or  the  proceeds  thereof,  came  to  the  hands  of 
Graham,  and  the  process  against  him,  followed  up  by  the 
decree  to  pay  $2,000  into  the  registry  of  that  court,  and  the 
execution  founded  thereon  returned  unsatisfied.  The  prayer 
of  the  libel  is  that  the  said  decree  against  P.  Graham  may  be 
carried  into  execution  by  a  decree  of  this  court.  It  is  mani- 
fest, therefore,  that,  although  the  sentence  of  condemnation  is 
mentioned,  it  is  merely  by  way  of  recital  in  the  complaint  of 
Wilson  against  Stewart ;  that  the  only  decrees  set  forth  in  this 
libel  are  those  against  Stewart  and  Graham  ;  and  that  the 
latter  is  the  only  one  which  the  libel  prays  the  aid  of  this 
court  to  execute. 

Now  it  is  perfectly  clear  that,  according  to  the  practice  of 
the  court,  where  a  specific  relief  is  asked  for,  even  although 
there  be  a  prayer  for  general  relief  (which  there  is  not  in  this 
case),  the  court  cannot  grant  a  relief  which  is  inconsistent 
with  or  entirely  different  from  that  which  is  asked  for.  Much 
less  can  the  court,  in  a  case  where  the  libel  seeks  execution  of 
a  decree  which  is  specially  set  forth,  execute  a  different  decree, 
which  is  not  even  stated  in  the  libel  as  an  existing  and  final 
decree.     If  the  practice  were  otherwise,  it  would  be  not  only 


76  EQUITY    PLEADING. 

unnecessary  to  state  the  relief  which  is  desired,  but  it  would 
be  mischievous  to  do  so,  as  it  could  only  serve  to  deceive  the 
other  side. 

Neither  is  it  correct  to  say  that  the  plea,  by  not  denying 
possession  of  the  merchandise,  admits  it.  In  the  first  place, 
that  fact  is  not  charged  in  the  libel,  nor  is  it  proved  by  the 
decree,  for  tlie  reasons  before  mentioned.  And  even  if  it  were 
charged,  still  it  must  have  been  upon  the  conclusive  effect  of 
the  decree,  from  which  the  respondent  could,  in  no  other  way, 
have  extricated  himself  but  by  showing  that  the  court  which 
pronounced  it  had  not  jurisdiction  in  the  case.  I  will  not  say 
that  the  respondent  in  the  district  court  might  not  have  stated 
all  the  matter  of  the  plea  in  an  answer,  and  also  have  denied 
the  fact  of  possession.  But  then  the  latter  part  of  his  defense 
would  have  been  merely  gratuitous,  and  not  being  responsive 
to  the  libel  in  that  respect,  it  could  not  have  availed  him.  It 
is,  after  all,  to  be  remarked  that  the  respondent  is  never 
bound  to  reserve  to  the  final  hearing  any  matter  which 
amounts  to  a  bar  to  -the  relief  prayed,  but  may  by  a  plea 
demand  the  judgment  of  the  court  upon  such  matter,  so  as  to 
save  the  expense  of  a  general  examination. 

The  decree  of  the  district  court  must  be  affirmed,  with  costs. 


CHAPTER  III. 


OF  THE   PARTIES. 


liiile  48. 
Where  the  parties  on  either  side  are  very  numerous,  and 
cannot,  without  manifest  inconvenience  and  oppressive  delays 
in  the  suit,  be  all  brought  before  it,  the  court  in  its  discretion 
ma}'  dispense  with  making  all  of  them  parties,  and  may  pro- 
ceed in  the  suit,  liaving  sufficient  parties  before  it  to  represent 
all  the  adverse  interest  of  the  plaintiffs  and  the  defendants  in 
the  suit  properly  before  it.  But,  in  such  cases,  the  decree  shall 
be  without  [)rejudice  to  the  rights  and  claims  of  all  the  absent 
parties. 

Rule  49. 

In  all  suits  concerning  real  estate  wliich  is  vested  in  trustees 
by  devise,  and  such  trustees  are  competent  to  sell  and  give 
discharges  for  the  proceeds  of  the  sale,  and  for  the  rents  and 
profits  of  the  estate,  such  trustees  shall  represent  the  persons 
beneficially  interested  in  the  estate,  or  the  proceeds,  or  tlie 
rents  and  profits,  in  the  same  manner  and  to  the  same  extent 
as  the  executors  or  administrators  in  suits  concerning  personal 
estate  represent  the  persons  beneficially  interested  in  such  per- 
sonal estate  ;  and  in  such  cases  it  shall  not  be  necessary  to  make 
the  persons  beneficially  interested  in  such  real  estates,  or  rents 
and  profits,  })arties  to  the  suit ;  but  the  court  may,  u|)on  con- 
sideration of  the  matter  on  the  hearing,  if  it  shall  so  think  tit, 
order  such  persons  to  be  made  parties. 

liufe  .^O. 

In  suits  to  execute  the  trusts  of  a  will,  it  shall  not  be  neces- 
sary to  make  the  heir  at  law  a  party;  but  the  plaintiffs  shall 

(77) 


78  EQUITY    PLEADING. 

be  at  liberty  to  make  the  heir  at  law  a  party  where  he  desires 
to  have  the  will  established  against  him. 

Bule  51. 

In  all  cases  in  which  the  plaintiff  has  a  joint  and  several 
demand  against  several  persons,  either  as  principals  or  sure- 
ties, it  shall  not  be  necessary  to  bring  before  the  court  as  par- 
ties to  a  suit  concerning  such  demand  all  the  persons  liable 
thereto;  but  the  plaintiff  may  proceed  against  one  or  more  of 
the  persons  severally  liable. 

Bnle  54. 

Where  no  account,  payment,  conveyance,  or  other  direct 
relief  is  sought  against  a  party  to  a  suit,  not  being  an  infant, 
the  party,  upon  service  of  the  subpoena  upon  him,  need  not 
appear  and  answer  the  bill,  unless  the  plaintiff  specially 
requires  him  so  to  do  by  the  prayer  of  his  bill;  but  he  may 
appear  and  answer  at  his  option;  and  if  he  does  not  appear 
and  answer  he  shall  be  bound  by  all  the  proceedings  in  the 
cause.  If  the  plaintiff  shall  require  him  to  appear  and 
answer  he  shall  be  entitled  to  the  costs  of  all  the  proceedings 
against  him  unless  the  court  shall  otherwise  direct. 

Ittde  S7. 
Guardians  ad  litem  to  defend  a  suit  may  be  appointed  by 
the  court,  or  by  any  judge  thereof,  for  infants  or  other  persons 
who  are  under  guardianship,  or  otherwise  incapable  to  sue  for 
themselves.  All  infants  and  other  persons  so  incapable  may 
sue  by  their  guardians,  if  any,  or  by  their  prochein  ami ;  sub- 
ject, however,  to  such  orders  as  the  court  maj  direct  for  the 
protection  of  infants  and  other  persons. 

TOBIN  V.  WALKINSriAW. 
(Circuit  Court  for  California  :  1  McAllister,  26-47.     1855.) 

Opinion  by  McAllister,  J. 

StatExMent  of  Facts. — Among  the  numerous  questions 
which  have   been    submitted    during    the    argument    of  this 


TOBIN    V.    WALKINSIIAW.  79 

motion  there  is  one  wliicli  arrests  attention  in  limine,  and,  in 
the  view  1  have  taken  ot"  the  case,  will  preclude  a  decision  on 
any  other.  That  question  is  one  of  jurisdiction.  In  advance 
of  any  discassion  on  this  point  I  desire  to  advert  to  a  question 
which  was  argued  incidentally  by  the  solicitors  for  the  respect- 
ive parties.  1  allude  to  the  question,  "How  far  is  matter  of 
avoidance  in  tui  answer  to  be  treated  as  evidence  by  the 
court?" 

An  examination  of  the  authorities  has  conducted  me  to 
the  conclusion  that  the  rule  is  that  upon  the  hearini:;,  after 
the  answer  is  put  in  issue,  new  matter  set  up  by  way  of 
avoidance  must  be  proved  by  defendant;  but  that  on  a 
motion  for  or  on  a  motion  to  dissolve  an  injunction  such  new 
matter  in  the  answer  responsive  to  the  bill  is  to  be  deemed 
evidence  in  favor  of  defendant,  as  his  afllidavit  or  sworn  state- 
ment. As  this  opinion  is  necessarily  very  extended  on  what 
I  deem  the  principal  point  in  the  decision  of  this  motion,  my 
reasons  for  the  conclusion  to  which  I  have  come  in  relation 
to  the  question  of  new  matter  in  the  answer  will  be  reserved 
for  some  future  case  or  occasion. 

In  regard  to  the  want  of  parties  in  this  case,  which  gives 
rise  to  the  question  of  jurisdiction,  it  has  been  urged  by 
complainants  that  it  is  too  late  for  defendants  to  object  a 
want  of  parties,  and  that  this  was  matter  only  for  a  plea  in 
abatement. 

Now,  a  plea  for  want  of  parties  is  not  matter  for  abatement. 
It  is  a  plea  in  bar  and  goes  to  the  whole  bill,  as  well  to  the 
discovery  as  to  the  relief  prayed.  1  Daniell's  Ch.  Pr.,  337. 
Again,  the  rule  is  that  if  want  of  parties  is  apparent  on  the 
face  of  the  bill,  the  defect  may  be  taken  advantage  of  by  de- 
murrer. If  such  defect  be  vital,  it  may  be  insisted  on  at  the 
hearing,  and  if  the  court  proceed  to  a  decree,  such  decree  may 
be  reversed.  If  the  defect  is  not  apparent  on  the  bill,  it  may 
be  propounded  by  way  of  a  plea,  or  it  may  be  relied  on  in  a 
general  answer.     Story's  Eq.  PI.,  §  236. 

In  Van  Epps  v.  Van  Deusen,  4  Paige's  Ch.,  75,  it  is  said 
defendant  is  not  bound  to  demur  or  plead.  Pie  may  make 
the  objection  in  his  answer,  and  may  liave  the  same  benefit 
of  the  objection  at  the  hearing  as  if  it  had  been  taken  l)v  {>lea 
or  demurrer. 

The  thirty-ninth  rule  of  equity  expressly  gives  the  right  to 
defendant  to  avail  in  his  answer  of  anything  which  would 


80  EQUITY    PLEADING. 

be  good  ill  the  form  of  a  plea  in  bar ;  and  the  fifty-second 
rule  provides  that  where  defendant  by  his  answer  suggests  the 
want  of  parties,  plaintiff  shall  be  at  liberty,  within  fourteen 
days  after  answer  filed,  to  set  down  the  cause  for  argument 
upon  that  objection  alone.  These  rules  evidently  authorize  a 
party  to  avail  himself  of  a  defect  for  want  of  parties  as  effect- 
ually in  his  answer  as  by  plea  in  bar. 

Had  defendants  availed  themselves  of  the  right  to  j)lead  in 
bar  much  time  and  discussion  would  have  been  saved.  But 
they  have  the  right  to  bring  forward  their  objection  in  the 
form  of  an  answer.  Having  done  so,  I  am  called  on  to  decide 
if  there  are  such  parties  before  the  court  as  will  authorize  it  to 
adjudicate  upon  this  cause,  whether  this  court  be  deemed  a 
court  of  general  equity  jurisprudence  or  whether  the  peculiar 
structure  of  the  limited  jurisdiction  of  this  court  under  the 
constitution  and  laws  of  the  United  States  be  considered. 

In  (Aameron  v.  McRoberts,  3  Wheat.,  591,  where  the  citizen- 
ship of  the  other  defendants  than  Cameron  did  not  appear  on 
the  record,  the  supreme  court  of  the  United  States  certified  : 
"  If  a  joint  interest  vested  in  Cameron  and  the  other  defend- 
ants, the  court  had  no  jurisdiction  over  the  cause.  If  a  dis- 
tinct interest  vested  in  Cameron,  so  tliat  substantial  justice  (so 
far  as  he  was  interested)  could  be  done  without  affecting  the 
other  defendants,  the  jurisdiction  of  the  court  might  be  exer- 
cised as  to  him  alone." 

In  Mallow  v.  Hinde,  12  Wheat.,  194,  the  principle  is  affirmed 
that,  thougli  the  rules  as  to  parties  in  equity  are  somewhat 
flexible,  yet,  where  the  court  can  make  no  decree  between  the 
parties  before  it  upon  their  own  rights  which  are  independent 
of  the  rights  of  those  not  before  it,  it  will  not  act.  The  court 
say  :  AVe  do  not  put  it  "  on  the  ground  of  jurisdiction,  but 
upon  a  much  broader  ground,  which  must  equally  appl}'  to  all 
courts  of  equity,  whatever  be  their  structure  as  to  jurisdiction." 

In  Russell  v.  Clarke's  Executors,  7  Cranch,  98,  the  court  say 
that  merely  formal  parties  might  be  dispensed  with  ;  but 
where  parties  are  essential  to  the  merits  of  the  question,  and 
may  be  much  affected  by  the  decree,  such  parties  are  indis- 
pensable. The  principle  enunciated  by  the  supreme  court  in 
the  foregoing  cases  is  a  reiteration  of  one  universally  recog- 
nized in  equity  jurisprudence.     Story's  Ecp  PI.,  §  137. 

The  rule  in  equity  differs  from  the  rule  of  law,  both  in  the 
necessity  of  joining  all  interested  parties  in  the  suit  and  in  the 


TOBIN     V.     W  .\I.KINS]I.\\V.  81 

option  (»!' jdiiiiiijj,'  tlunii  ;is  plaiiiliU's  (ir  (Iclc'iidaiits.  At  law  a 
disputed  issue  is  alone  contested,  the  innnediatc  disputants  are 
alone  l)Ound  by  the  decision,  and  they'alone  aii-  })atti('s  to  the 
a'^ition.  In  equity  a  decree  is  asked,  and  not  a  decision  only  ; 
and  it  is  therefore  requisite  that  all  persons  should  In-  hel'ore 
the  court  whose  interests  may  be  aflected  by  the  pi'ojxiscd 
decree  or  whose  concurrence  is  necessary  to  a  complete 
arrangement.     Adams'  Equity,  099,  703,  704. 

The  act  of  congress  of  February  28,  1839  (5  Laws  U.  S., 
321),  and  the  forty-seventh  equity  rule  of  this  court,  have 
been  cited  by  complainant's  solicitors  and  relied  on  to  sustain 
the  jurisdiction  in  this  case.  They  have  also  adduced  the 
case  of  Dorenius  and  Nixon  v.  Bennett  and  others,  4  McLean, 
224,  as  to  the  interpretation  of  the  act  of  congress.  That  was 
a  case  at  law.  Now  it  is  true  that  by  their  provisions  the 
circuit  courts  of  the  United  States  are  authorized,  in  certain 
cases,  to  proceed  against  one  or  more  defendants  in  the  ab- 
sence of  others,  where  such  others  are  not  inhabitants  of  or 
found  in  the  district  when  and  where  the  suit  is  brought. 
But  both  the  act  of  congress  and  the  forty-seventh  rule  have 
been  elaborately  considered  and  the  construction  of  them 
tixed  by  the  supreme  court  of  the  United  States  in  the  recent 
case  of  Shields  v.  Barrow,  17  Howard,  130.  In  that  case  it  is 
settled  that  neither  the  act  of  congress  nor  the  rule  impinges 
on  the  general  doctrine,  and  that  if  the  citizenship  of  })arties 
be  such  that  their  joinder  would  defeat  the  jui'isdiction  of  the 
court,  such  fact  will  not  supersede  the  necessity  of  making 
them  parties  ;  so  far  as  the  said  act  and  rule  ap[)ly  to  suits  in 
equity,  it  is  to  be  understood  they  are  no  more  than  the 
legislative  affirmance  of  the  rule  previously  established  b}^  the 
adjudications  of  the  supreme  court  of  the  United  States.  The 
act  of  congi'css  removed  any  difficulty  as  to  jurisdiction  be- 
tween parties  who  are  competent  under  the  general  rule  of 
equity  jurisprudence  ;  and  the  fort3'-seventh  rule  of  practice  is 
only  a  declaration,  for  the  government  of  practitioners  and 
courts,  of  the  effect  of  the  act  of  congress  and  the  previous 
decisions  of  the  supreme  court.  "  It  remains,"  say  the  court, 
that  a  circuit  court  "can  make  no  decree  between  the  parties 
before  it,  which  so  far  involves  or  depends  upon  tlu^  rights  of 
an  absent  person  that  complete  and  final  justice  cannot  be 
done  between  the  parties  to  the  suit  without  affecting  those 
rights."  17  Howard,- 141. 
6 


S2  EQUITY    PLEADING. 

The  general  rule  as  to  the  parties  to  a  bill  is  not,  then, 
altered  by  the  act  of  congress  and  the  equity  rule  cited  by  the 
solicitors  for  complainants  ;  nor  is  that  rule  affected  by  the 
limited  jurisdiction  of  the  courts  of  the  United  States.  The 
fact  that  a  person  is  without  the  reach  of  the  process  of  the 
court  will  not  dispense  with  the  necessity  of  making  such  per- 
son a  party,  provided  he  be  an  indispensable  one. 

Parties  to  bills  are  divided  into  three  classes  (17  How.,  139)  : 
1.  Nominal.  2.  Necessary.  3.  Indispensable.  If  a  nominal 
party  be  beyond  the  reach  of  the  process  of  the  court,  being  a 
party  having  no  interest  to  be  affected  by  the  proposed  decree, 
that  fact  cannot  defeat  the  jurisdiction  of  the  court.  An  in- 
stance of  this  class  of  parties  is  where  one  is  joined  as  a  party 
for  sake  of  conformity  in  the  bill,  having  no  interest,  legal  or 
•equitable,  to  be  affected  by  the  decree.  The  second  class, 
known  as  necessary  parties,  are  such  as  have  an  interest  in  the 
controversy,  and  ought  to  be  made  parties  to  enable  the  court 
to  do  complete  justice  by  adjusting  all  tlie  rights  involved  ; 
still,  if  their  interests  are  separable  from  those  before  the  court, 
they  are  not  indispensable  parties.  Mr.  Justice  Curtis  has 
referred,  as  an  instance  of  a  necessary  part}--,  to  the  case  of 
Osborn  v.  The  Bank  of  the  United  States,  9  Wheat.,  738.  This 
case  has  been  cited  by  the  solicitors  for  complainants  as  the 
strongest  case  ;  and  in  their  written  brief  upon  the  point  under 
consideration,  they  say  :  "  This  [case]  seems  to  us  conclusive 
as  to  the  rule  in  a  case  of  trespass."  It  is  due  to  the  able 
counsel  and  the  importance  of  the  question  that  proper  con- 
sideration be  paid  to  this  case.  We  shall  give  it  that  consid- 
eration hereafter. 

The  third  class  of  cases  enumerated  by  Mr.  Justice  Curtis 
are  the  indispensable,  who  have  such  an  interest  in  the  con- 
troversy that  a  decree  cannot  be  made  without  affecting  that 
interest;  and  the  inquiry  is,  Do  the  pleadings  in  this  case  dis- 
close the  fact  that  there  are  absent  persons  whose  interests 
make  them  indispensable  parties?  The  rule  we  are  consider- 
ing laid  down  generally  is  that,  where  the  rights  of  an  absent 
person  will  be  much  affected  by  the  decree  asked  for,  the 
■court  cannot  proceed  to  a  decree.  This  general  rule  is  to  be 
applied  to  the  circumstances  of  each  case  as  they  shall  arise. 
By  ascertaining  how  this  rule  has  been  applied  in  precedent 
>cases,  we  will  understand  how  to  apply  it  to  the  case  at  bar. 

In  Mallow  v.  Hinde,  12  Wheat.,  194,  the  complaint  set  up 


TOBIN    V.    WALKINSHAW.  S3 

a  claim  to  a  tract  oi'  land  iiiider  a  survev,  No.  ool ,  in  the 
name  of  John  Camphell,  who,  by  hi.s  will,  devised  and  be- 
queathed this,  among  other  munimeiits  of  title,  to  Richard 
'J'aylor  and  others,  executors,  in  trust  for  the  children  of  his 
sister.  Taylor  alone  qualified  and  took  upon  himself  the 
execution  of  the  trust.  He  never  assigned  or  conveyed  to  the 
cestui  que  trusts,  but  permitted  them  to  take  the  management 
of  the  claim  into  their  own  hands.  Subsequently,  when  these 
last  had  arrived  at  full  age,  they  entered  into  contracts  with 
one  Elias  Langham,  Avhereby  he  became  entitled  to  survey 
No.  537  and  he  subsequently  conveyed  the  land  to  complain- 
ants. Thus  stood  the  case  when  the  defendant  Hinde,  with 
full  knowledge  of  the  rights  of  complainant,  procured  from 
Taylor  a  military  warrant  belonging  to  him  (Taylor)  in  his 
own  right,  made  an  entry  thereof  in  his  (Hinde's)  right,  and, 
having  caused  a  survey  to  be  made  thereupon  covering  survey 
No.  537,  obtained  a  patent  for  the  land.  Having  thus  got  the 
legal  title  he  instituted  actions  of  ejectment  against  the  com- 
plainants, and  obtained  judgments  of  eviction  against  them. 
A  bill  setting  forth  the  whole  transaction,  charging  notice  of 
complainants'  rights,  and  gross  fraud  against  defendant,  was 
filed,  which  prayed  for  an  injunction  to  enjoin  defendant  from 
proceeding  on  his  judgments,  and  for  general  relief  Here 
was  as  tortious  an  act  and  as  great  fraud  as  could  be  per- 
petrated under  the  forms  of  law,  charged  upon  defendant. 
The  defendant  denied  all  fraud,  set  np  the  bona  fides  of  the 
transaction,  neither  admitted  nor  denied  the  contracts  between 
the  cestui  que  trusts  and  Langham,  and  insisted  if  there  were 
any  such  they  were  fraudulent.  Neither  Taylor  nor  the  cestui 
que  trusts  were  made  parties,  being  out  of  the  jurisdiction  of 
the  court.  An  objection  for  want  of  parties  arose,  and  it  was 
insisted  that  both  Taylor  and  the  cestui  que  trusts  were  indis- 
pensable parties. 

The  court  so  decided.  They  .say  :  "  The  complainants  claim 
through  certain  contracts  made  between  Langham  and  the 
cestui  que  triists.  How  can  a  court  of  equity  decide  that  such 
contracts  ought  to  be  decreed  specifically  without  having  the 
parties  before  them?  Such  a  proceeding  would  be  contrary 
to  all  rules  which  govern  a  court  of  equity,  and  against  the 
principles  of  natural  justice.''  In  respect  to  Taylor  it  was 
urged  that  he  had  ))arted  with  his  "  incidental  right  ;"  but  the 
court  determined  that  he  and  the  cestui  que  trusts  were  indis- 


84  EQUITY    PLEADING. 

pensable  parties.  "  If,"  says  the  supreme  court,  "  the  United 
States  courts  were  courts  of  general  jurisdiction,  it  could  not 
be  doubted  that  the  absent  persons  would  be  indispensable 
pai'ties."  But  it  is  urged  that  the  rule  which  ])revails  in 
courts  of  equity  generally,  that  all  the  parties  in  interest  shall 
be  brought  before  the  court,  etc.,  ought  not  to  be  adopted  by 
the  courts  of  the  United  States,  because,  from  the  peculiar 
structure  of  their  limited  jurisdiction  over  persons,  the  ap[)li- 
cation  of  the  rule  in  its  full  extent  would  often  oust  the  court 
of  its  acknowledged  jurisdiction  over  the  persons  and  subject 
before  it.  In  answer  to  such  argument  the  court  proceeds  to 
show  that  no  modification  of  the  rule  to  an  extent  by  which 
the  riglits  of  an  absent  person  may  be  materially  affected  is 
admissible,  and  concludes  by  saying  :  "  We  put  this  case  on 
the  ground  that  no  court  of  ecpiity  can  adjudicate  directly 
upon  a  person's  rights  without  the  party  being  actually  or 
constructively  before  the  court;"  and  the  bill  was  found  de- 
fective for  want  of  parties. 

In  Brookes  v.  Burt,  1  Beav.,  106  ;  17  Eng.  Ch.  Rep.,  106,  a 
bill  was  brought  by  one  tenant  in  common  against  defendant, 
who,  it  was  alleged,  had  wrongfully,  and  in  defiance  of  com- 
plainants' title,  entered  into  possession  and  received  the  rents 
and  profits  of  the  property  ;  it  was  further  alleged  that  com- 
plainants had  commenced  an  action  of  ejectment  for  the 
premises,  which  defendant  defended  ;  that  before  the  trial  of 
such  ejectment  plaintiffs  discovered  that  the  property  was 
subject  to  an  ■  outstanding  term  which  was  vested  in  one  Mr. 
Worsley,  which  defendant  threatened  to  set  up  to  defeat  the 
action  at  law  ;  and  lastly,  the  bill  alleged  that  James  Wavel, 
the  co-tenant  in  common  with  plaintiffe,  was  at  the  time  re- 
siding out  of  the  jurisdiction  of  the  court.  (It  should  be 
observed  here  that  tlie  objection  was  that  the  co-tenant  in 
common  was  not  made  a  party  complainant.)  There  was  a 
general  demurrer  for  want  of  equity,  on  the  ground  that 
Wavel,  the  co-tenant,  and  Worsley,  in  whom  the  outstanding 
term  was  vested,  were  indispensable  parties  to  the  bill.  The 
court  decided  that  the  holder  of  the  outstanding  term  was  not, 
but  that  the  co-tenant  was.  On  the  argument  it  was  urged, 
in  relation  to  Wavel,  that  he  was  part  owner  of  the  property  ; 
that  among  other  things  prayed  for  was  a  declaration  of 
right,  the  delivery  of  the  title  deeds  of  the  property,  and  for 
an   account  of  the   rents   and    profits,  matters  in  which   the 


TOBIN    V.    WALKINSIIAW.  85 

absent  party  was  interested,  and  that  therefore  the  suit  which 
sought  to  deal  witli  the  inheritance  was  defective  I'or  want  of 
parties.  To  this  com})hunants  replied  tliat  the  proposition 
embodied  in  the  objection  was  that  if  there  be  twenty  tenants 
in  common,  and  a  stranger  gets  possession,  one  of  the  tenants 
in  common  cannot  recover  the  possession  of  the  rents  and 
profits  from  the  stranger  without  making  the  other  nineteen 
persons  with  whom  he  had  no  dispute  parties  to  the  suit ;  that 
this  was  an  ejectment  bill  and  must  be  governed  by  the  same 
rules  as  an  ejectment  at  law  ;  that  Wavel,  the  co-tenant,  was 
out  of  the  jurisdiction  of  the  court.  Lastly  it  was  urged  that 
the  complainants  were  entitled  to  some  i:)ortion  of  the  relief 
prayed  for,  and,  at  the  time  of  the  hearing,  they  might  waive 
part  of  the  relief  sought  and  obtain  the  rest ;  that  the  de- 
murrer, therefore,  covered  too  much  and   must  be  overruled. 

Such  were  the  arguments  by  complainants  in  that  case,  and 
they  are  similar  to  those  urged  in  this  case  by  complainants' 
solicitors.  To  all  the  master  of  the  rolls  replied  :  "  It  appears 
to  me  this  demurrer  must  be  allowed.  .  .  .  Where  the  de- 
murrer is  for  want  of  parties,  it  is  not  sutKcient  ibr  tlie  plain- 
tiffs to  say  that  there  is  some  part  of  the  relief  which  can  be 
abandoned  at  the  hearing.  .  .  .  The  bill  prays  for  accounts 
and  the  delivery  up  of  title  deeds.  ...  1  conceive  Wavel  is  a 
necessary  party.  .  .  .  The  demurrer  must  be  allowed."  1 
Beavan,  111. 

In  Turner  v.  Hill,  11  Simons,  1,  a  bill  was  filed  to  compel 
defendant  to  ti'ansfer  her  share  in  a  mine  to  complainant, 
which  it  was  alleged  .she  had  obtained  by  fraudulent  means, 
and  to  account  for  and  pay  to  plaintiff  the  protits  thereof,  and 
that  a  receiver  might  be  appointed  of  the  })rofits  of  the  mines. 
It  was  objected  that  the  other  adventurers  in  the  mine  were 
indispensable  parties,  inasmuch  as  an  account  was  called  for ; 
and  the  vice-chancellor  decided  against  the  objection  on  the 
sole  ground  that  the  bill  did  not  call  for  an  account  of  the 
mine,  but  for  that  of  the  specific  share  sued  for.  He  says, 
"  Thai  passiige  in  the  prayer  of  the  bill  which  asks  for  a  re- 
ceiver of  the  profits  of  the  whole  mines  is  clearly  a  mistake, 
for  the  plaintiff  is  seeking,  by  his  bill,  to  recover  no  more  than 
a  hundredtli  share  of  the  mines  ;  and  therefore,  in  connnon 
fairness  of  construction,  that  passage  ought  to  be  referred  to 
the  profits  of  that  share."  Con.sidering  .such  to  Ik;  the  fair 
con.struction  of  the  bill,  he  decided  it  was  unneces.sary  lo  make 
the  othei'  shareholders  })arties. 


86  EQUITY    PLEADING. 

A  similar  decision,  for  the  same  reasons,  was  made  in  the 
case  of  Turner  v.  Borlase,  11  Simons,  17,  and  appeal  was 
carried  to  the  lord  chancellor  (11  Simons,  18),  and  the  decision 
in  it  confirmed,  the  distinction  drawn  between  a  prayer  for  the 
profits  of  the  mine  and  those  of  the  particular  share  sued  for 
being  carefully  sustained.  In  giving  his  decision  on  the 
appeal  the  chancellor  said,  "  It  was,  however,  observed  that 
the  bill  prayed  a  receiver  of  the  profits  arising  from  the  said 
mines;  and  if  that  must  necessarily  be  intended  to  mean  the 
general  profits  of  the  mines,  it  would  be  asking  for  that  which 
could  not  be  granted,  in  the  absence  of  all  the  other  adventur- 
ers ;  but  I  do  not  understand  the  expression  to  have  that 
meaning.  All  the  case  made  and  all  the  relief  asked  relate  to 
the  particular  shares,"  etc.,  "  and  I  must  understand  the  profits 
as  to  which  the  receiver  is  asked  to  be  the  profits  spoken  of, 
which  makes  the  whole  consistent,  and  for  winch  purpose  the 
other  adventurers  would  not  be  necessary  parties."  11 
Simons,  20. 

The  decision  of  the  court  below  was  therefore  affirmed,  and 
the  demurrer  overruled;  but  the  chancellor,  in  conclusion, 
declared  that  his  judgment  on  the  demurrer  was  on  the  facts 
admitted  by  it ;  but  if  the  facts  at  the  hearing  so  admitted 
were  not  sustained,  the  opinion  he  had  just  delivered  could 
have  no  bearing  on  the  case. 

The  principles  deducible  from  foregoing  authorities  are: 

1.  That  the  general  rule  in  equity  is  that  all  persons  whose 
interest  may  be  materially  affected  by  a  decree  must  be  before 
the  court  to  enable  it  to  act. 

2.  That  this  rule  may  be  relaxed  so  as  to  dispense  with 
formal,  and,  under  special  circumstances,  with  necessary 
parties. 

3.  That  the  rule  which  has  been  announced  by  the  deci- 
sions of  the  supreme  court  of  the  United  States  is  but  a  reitera- 
tion of  the  doctrine  of  a  court  of  equity  in  the  application  of 
its  chancer}^  jurisdiction. 

4.  That  the  act  of  congress  of  February  28,  1839,  and  the 
forty-seventh  rule  of  equit}^,  which  allow  one  or  more  defend- 
ants to  be  sued  in  the  absence  of  others  without  the  jurisdic- 
tion of  the  court,  apply  onl}'  to  competent  parties,  are  simply 
an  affirmance  of  previous  decisions  of  the  supreme  court  of  the 
United  States,  and  do  not  vary  the  rule  as  to  indispensable 
parties.     17  How.,  141. 


TOBIN    V.    WALKIXSIIAW.  87 

5.  That  the  peculiar  structure  of  the  limited  jurisdiction  of 
the  courts  of  the  United  States  does  not  abolish  or  modify  the 
rule  as  to  indispensable  parties ;  and  'the  fact  that  such  are 
without  the  jurisdiction  will  not  enable  the  court  to  proceed 
against  the  parties  before  it. 

G.  That  it  has  been  decided  by  the  supreme  court  of  the 
United  States  (12  Wheaton,  194)  that  where  complainant  seeks 
to  set  aside  a  frnudulent  purchase  of  land  by  defendant,  and 
to  enjoin  his  proceeding  on  a  judgment  he  had  obtained  in  an 
ejectment  at  law  against  comphunant,  the  party  through 
whom  the  latter  claimed  his  equitable  title  was  an  indispen- 
sable party. 

7.  That  it  has  been  decided  in  the  English  chancery 
(1  Beavan,  106)  that  one  tenant  in  common  cannot,  without 
joining  with  him  his  co-tenant,  sustain  a  bill  in  equity  against 
the  trespasser  in  possession,  and  enjoin  him  from  setting  up 
an  outstanding  term,  inasmuch  as  the  bill  prayed  for  the 
delivery  of  title  deeds  and  account  of  the  rents,  these  being^ 
matters  in  which  the  absent  person  was  interested,  and  was 
therefore  an  indispensable  party  ;  that  where  a  question  arises 
as  to  parties,  it  is  not  for  the  complainant  to  say  the  court 
must  proceed  to  a  hearing  when  he  (complainant)  may  dis- 
claim a  part  of  the  relief  and  obtain  the  balance  ;  and  lastly, 
that  the  fact  that  the  absent  party  resided  out  of  the  jurisdic- 
tion of  the  court  made  no  difference  in  the  application  of  the 
rule.  These  last  principles  are  deducible  from  the  case  of 
Brookes  v.  Burt,  1  Beavan,  106.  It  is  to  be  again  noted  that 
this  was  a  case  brought  by  one  tenant  in  common  to  assert  a 
right  against  a  wrong-doer  ;  and  the  absent  tenant  in  common 
was  deemed  an  indispensable  party.  How  much  stronger  is 
the  case  at  bar,  where  it  sought  to  injuriously  affect  the  rights 
of  part  owners  who  are  absent!  If,  in  the  former  case,  the 
person  is  deemed  an  indispensable  party,  a  fortiori  he  must  be 
so  deemed  in  the  latter. 

8.  That  it  has  been  decided  that  where  a  bill  is  filled  to 
compel  defendant  to  transfer  to  comj^lainant  a  share  in  a  mine 
fraudulently  obtained  by  him,  and  to  account  for  the  profits 
thereof,  jurisdiction  will  be  sustained  on  the  ground  that  the 
bill  seeks  only  a  specific  share  in  the  profits  thereof;  but  it  is 
expressly  affirmed  that  if  the  bill  had  sought  for  a  delivery 
of  title  papers,  which  touches  the  inheritance,  or  for  an  account 
of  the  mines,  these   being   matters   in  which  the  other  iu^ven- 


88  EQUITY    PLEADING. 

tureis  ill  the  mine  were  interested,  the  court  could  not  proceed, 
such  other  adventurers  being  indispensable  parties. 

Let  us  apply  these  principles  to  the  case  at  bar.  The  com- 
plainants in  their  bill  allege  title  to  certain  premises  situated 
in  this  state;  that  defendants  have  wrongfully  entered  into 
possession  thereof,  and  are  committing  a  trespass  thereon  by 
cutting  down  timber  and  excavating  mines  or  minerals  there- 
from, and  that  they  (the  complainants)  have  instituted  an 
action  of  ejectment  against  the  defendants  for  the  purpose  of 
evicting  thein  therefrom.     The  bill  prays  against  defendants: 

1.  That  an  account  be  taken  for  the  year  preceding  the  fil- 
ing of  the  bill  of  the  amount  of  timber  cut  and  destroyed  on 
the  premises,  and  a  similar  account  of  the  quicksilver  so 
taken. 

2.  That  injunction  may  issue  to  restrain  defendants  from 
further  trespass. 

3.  That  a  receiver  be  appointed  to  take  charge  of  the  mine 
and  the  reducing  establishment  connected  therewith,  and  all 
the  products  thereof,  now  within  the  jurisdiction  of  this  court. 

4.  That  on  the  final  hearing  the  conveyances  made,  under 
which  defendants  claim  title,  may  be  ordered  to  be  delivered 
up  and  canceled,  the 'injunction  made  perpetual,  and  for  gen- 
eral relief 

An  answer  has  been  filed,  and  the  facts  necessary  to  be 
looked  to  in  connection  to  the  question  as  to  parties  are  found  in 
pages  43,  44  and  45.  The  facts  disclosed  are  that  there  are 
proprietors  of  the  mine  and  land  other  than  defendants.  That 
of  them,  four  in  number,  viz.,  Eustaquio  Barron,  Eustachio  M. 
Barron,  Mai-tin  La  Piedra  and  Maria  Oritz,  are  without  the 
jurisdiction  of  this  court;  that  John  Parrott  and  .James  K. 
Bolton  are  also  co-owners  of  the  premises,  and  that  they  are 
within  the  reach  of  the  process  of  the  court.  It  is  further 
averred  that  long  before  the  institution  of  the  action  of  eject- 
ment at  law,  and  before  the  exhibiting  of  the  bill,  a  contract 
was  entered  into  by  the  owners  of  the  mine  with  certain  per- 
sons for  the  working  of  them  ;  and  it  is  contended  that  both 
the  proprietors  and  contractors  should  be  made  parties. 

Upon  the  authority  of  the  cases  cited  above  I  cannot  doubt 
tliat  the  owners  are  indispensable  parties  in  this  case.  In 
tlie  opinion  of  the  court  the  authority  of  cases  is  hardly 
ih'cded. 

What  is  the  character  of  this   bill?     It  does  not  seek  the 


TOni.N     V.     W  Al.K  INSIIAW.  t>5) 

intei'pDsition  of  (his  court  to  recover  the  sj)eeitie  shar<'s  of  the 
mine  or  land  and  the  jjrofits  thei-euf,  proi)erty  of  the  defend- 
ants. If  it  (hd  it  would  come  within  iho  authorities  and  the 
limits  of  natural  justice.  I>ut  the  hill  asks  that  an  account  of 
profits  belonging  toother  people,  and  title  deeds  to  i)roperiy  in 
which  those  other  and  absent  iiei.son.s  are  as  much  interested 
and  to  a  larger  extent  than  the  defendants  thom.selves,  shall 
be  canceled.  It  furtljer  asks  that  the  profits  of  all  the  owners 
should  be  wrested  from  them  and  paid  into  the  hands  of  a 
receiver.  Now,  can  this  court  call  for  an  account  of  the  profits 
of  the  mine  or  arrest  such  profits,  or  direct  a  cancellation  and 
delivery  of  the  title  deeds,  in  the  absence  of  parties  both  within 
and  without  the  reach  of  its  process  who  are  interested  in  those 
profits  and  those  title  deeds  ?  Were  the  court  to  do  any  one 
of  these  things  would  not  the  rights  of  the  absent  owners  be 
materially  alfected  ?  It  is  urged  that  the  court  can  entertain 
jurisdiction  of  this  case,  issue  the  injunction  and  wait  until 
the  hearing,  when  the  complainant  may  wai.ve  a  portion  of 
the  relief  j)rayed  for,  and  the  court  can  decree  so  much  of  that 
relief  as  they  may  be  entitled  to.  This  course  M'ould  be  con- 
trar}'^  to  authority,  and  in  violation  of  the  reason  of  the  thing. 
We  have  seen  that  the  lord  chancellor  has  said  in  Brookes  v. 
Burt  that  when  the  question  of  parties  arises  it  is  not  sufficient 
for  the  complainant  to  say  "that  there  is  some  part  of  the 
relief  which  can  be  abandoned  at  the  hearing."  Again,  apart 
from  authority,  on  what  ground  of  justice  or  reason  can  this 
court  arrest,  by  injunction,  the  profits  of  the  mine  from  absent 
persons  until  tlie  hearing,  for  the  purjiose  of  ultimately  getting 
an  account  from  the  defendants  of  their  s[)ecific  interests? 
Would  the  arrest  of  these  profits  "  affect "  the  interest  of  the 
absent  owners?  If  so,  should  a  court  of  equity  proceed  in 
their  absence?  "Audi  alteram  partem''  is  alike  a  dictate  of 
natural  justice  and  a  i)rece|)t  of  nHinici|)al  law. 

I  liave  searched  in  vain  for  a  pi'ecedent  that  would  justify 
tliis  course.  The  able  counsel  for  complainants  would  have 
found  such  if  any  existed.  The  case  of  Osborn  v.  The  Bank 
of  the  I'nited  States  has  been  adduced  as  the  authority  which 
seems  to  them  conclusive  in  favor  of  such  jurisdiction  ;  and  it 
has  l)een  intimated  to  me  })y  one  of  the  counsel  that  it  has 
been  exhibited  to  several  of  his  professional  brethren,  who 
concur  in  tlie  opinion  that  it  is  conclusive  on  the  ]')oint.  That 
case,  therefore,  claims  attention. 


90  EQUITY    PLKADIXG. 

The  opinion  in  tliat  case  occujncs  scvent,y-six  pages  of  the 
Reporter.  To  show  what  were  the  points  decided,  by  travel- 
ing through  it,  would  be  time  misspent.  But  there  is  a  short 
method  of"  doing  tliis,  and  one,  j)ei'haps,  which  will  conduct  to 
a  more  correct  conclusion  than  any  this  court  could  pursue. 
By  reference  to  the  j^rospectus,  published  by  Mr.  Justice  Curtis 
in  17  Howard,  it  will  be  found  that  liis  {)lan  in  giving  his 
new  edition  of  the  Supreme  Court  Reports  was  to  endeavor  ta 
give,  in  tlie  head-notes,  tlie  substance  of  each  decision.  They 
are  designed,  he  says,  to  show  the  points  decided  by  the  court, 
not  the  dicta  or  reasonings  of  the  court.  Now,  upon  reference 
to  his  headnotes  to  Osborn  v.  The  Bank  of  the  United  States, 
we  find  that  the  only  points  which,  in  his  o})inion,  were  de- 
cided in  that  case  which  touch  the  c^uestion  under  considera- 
tion are:  1.  A  court  of  equity  may  restrain,  by  injunction,  a 
public  officer  of  a  state  from  acting  under  a  void  law  of  a  state 
to  destroy  a  franchise.  2.  As  the  state  cannot  be  joined  as  a 
defendant,  its  agent  may  be  sued  alone ;  and  if  he  has  specific 
moneys  or  notes  wrongful!}^  taken  in  his  possession,  they  may 
be  ordered  to  be  returned. 

So  far  as  any  decision  in  this  case  goes,  it  does  not  touch  the 
case  at  bar.  But  reference  has  been  had  to  certain  observa- 
tions made  by  Chief  Justice  Marsliall,  while  delivering  the 
opinion  of  the  court,  and  citations  from  the  opinion  have  been 
inserted  in  the  brief  of  solicitors  for  complainants,  which  are 
deemed  directly  ai)[)licable  to  the  case  at  bar.  The  first  cita- 
tion is  from  9  Wheaton,  page  842,  and  is  as  follows:  "The 
single  act  of  levying  the  tax  in  the  first  instance  is  the  cause 
of  an  action  at  law  ;  but  that  affords  a  remedy  only  for  the 
single  act,  and  is  not  equal  to  the  remedy  in  chancery,  which 
prevents  the  repetition  and  protects  the  privilege.  The  same 
conservative  principle  which  induces  the  court  to  interpose  its 
authority  for  the  protection  of  exclusive  privileges,  to  prevent 
the  commission  of  waste,  even  in  some  cases  of  trespass,  and 
many  cases  of  destruction,  will,  we  think,  a])ply  in  this.  In- 
deed, trespass  is  destruction  where  there  is  no  privity  of  estate. 
If  the  state  of  Ohio  could  have  been  made  a  party  defendant, 
it  can  scarcely  be  denied  that  this  would  l)e  a  strong  case  for 
an  injunction.  The  objection  is  that,  as  the  real  party  cannot 
be  brought  before  the  court,  a  suit  cannot  be  maintained 
against  the  agents  of  that  })arty  ;  and  cases  have  been  cited  to 
show  that  a  court  of  chancery  will  not  make  a  decree  unless 


TOBIN    V.    WALKINSIIAW.  91 

all  those  who  aiv  substantially  interested  l)e  made  parties  to 
the  suit.  This  is  certainly  true  where  it  is  in  tiie  power  of  the 
plaintiff  to  make  them  parties;  but  if  tlie  person  who  is  the 
real  principal,  the  person  who  is  the  true  source  of  the  mis- 
chief, by  whose  power  and  for  whose  advantage  it  is  done,  be 
himself  above  the  law,  be  exempt  from  all  judicial  i)rocess,  it 
would  be  subversive  of  the  best-established  principles  to  say 
that  the  la\vs  could  not  afford  the  same  remedy  ngainst  the 
agent  employed  in  doing  the  wrong  which  they  would  alford 
against  liiin  could  his  principal  be  joined  in  the  suit.  It  is 
admitted  that  the  privilege  of  the  principal  is  not  communi- 
cated to  the  agent ;  for  the  appellants  acknowledge  that  an 
action  at  law-  would  lie  against  the  agent,  in  which 'full  com- 
pen.sation  ought  to  be  made  for  the  injury.  It  being  admitted, 
then,  that  the  agent  is  not  privileged  by  his  connection  with 
his  principal,  that  he  is  responsible  for  his  own  act  to  the  full 
extent  of  the  injury,  why  should  not  the  preventive  power  of 
the  court  also  be  applied  to  him  ?  Why  may  it  not  restrain 
him  from  the  commission  of  a  wrong  which  it  would  punish 
him  for  committing?  " 

The  propositions  asserted  in  the  above  observations  are  : 

1.  That  though  the  single  act  of  an  illegal  tax  is  the  subject 
of  an  action  at  law,  its  repetition  makes  it  a  continuing  tres- 
pass, which  a  court  of  ecpiity  may  enjoin. 

2.  That  where  the  principle  is  exempt  from  all  judicial  pro- 
cess, being  a  sovereign  state,  the  privilege  which  belongs  to 
such  princijial  is  not  communicated  to  the  agent  who  does  the 
wrong. 

3.  That  under  such  circumstances  the  court,  acting  on  the 
principle,  "  Lex  non  cogit  ad  impossibilia,"  will,  at  instance  of 
complainant,  issue  an  injunction  to  restrain  the  agent  from 
committing  the  tortious  act. 

These  propositions  cannot  control  this  axse  : 

1.  Because  there  is  no  question  of  princijtnl  luid  jigcnt  in 
this  case. 

2.  The  necessity  of  dispensing  with  a  necessary  party  who 
was  exem})t  from  judicial  process  does  not  exist  in  this  case. 
(On  page  846,  C  J.  Marshall  says,  "  Had  it  been  in  the  power 
of  complainant  to  make  it  [the  state]  a  party,  perhaps  no  de- 
cree ought  to  have  been  pronounced.") 

3.  Because  the  attempt  in  this  case  is  to  make  defendants 
liable  as  principals  in  a  tort,  and  asks  the  court  to  ai'rest  the 


92  EQUITY    PLEADING. 

profits  of  absent  parties  for  the  purpose  of  making  defendants 
responsible  for  the  consequences  of  their  own  tortious  act. 

There  are  two  other  citations  from  the  opinions  of  the  court. 
The  first  is  a  continuation  of  the  first  above  quoted  and  is  in 
these  words  :  "  We  put  out  of  view  the  character  of  the  prin- 
cipal as  a  sovereign  state,  because  that  is  made  a  distinct 
point,  and  consider  the  question  singly  as  respects  the  want 
of  parties."  Here  this  second  citation  ceases,  and  another  is 
taken  from  the  succeeding  page  (844),  as  follows  :  "In  the 
regular  course  of  things  the  agent  would  pay  over  the.  money 
immediately  to  his  principal,  and  would  thus  place  it  beyond 
the  reach  of  the  injured  part}^  since  his  principal  is  not 
amenable 'to  the  law.  The  remedy  for  the  injury  would  be 
against  the  agent  only,  and  what  agent  could  make  compen- 
sation for  such  an  injury?  The  remedy  would  \iave  nothing 
real  in  it.  It  would  be  a  remedy  in  name  only,  not  in  sub- 
stance. This  alone  would,  in  our  opinion,  be  a  sufficient 
reason  for  a  court  of  equity.  The  injury  would  in  fact  be 
irreparable ;  and  the  cases  are  innumerable  in  wliich  injunc- 
tions are  awarded  on  this  ground."  Now,  this  latter  citation 
establishes  this  proposition,  viz.:  That  the  agent  would  pay 
over  to  the  principal,  who  was  exempt  from  all  judicial  pro- 
cess, and,  being  unable  to  respond  to  the  damages,  the  injury 
would  be  irreparable,  and  therefore  is  ground  for  injunction. 
To  this  extent  it  goes ;  but  the  whole  is  dependent  for  its 
application  upon  the  fact  wiiether  defendant  is  responsible 
upon  an  implied  contract  solely  for  the  amount  in  his  hands. 
This  is  evident,  as  the  court  puts  the  hypothesis.  "  Now,  if 
the  party  before  the  court  would  be  responsible  for  the  whole 
injury,"  etc. 

To  prove  why  the  court  considers  the  defendant  liable,  it  is 
necessary  to  cite  the  remarks  which  intervene  between  the  two 
quotations  cited  above  :  "  Now,  if  the  party,"  say  the  court, 
"  would  be  responsible  for  the  whole  injury,  why  ma}''  he  not 
be  restrained,  etc.  The  ai)pellants  found  their  distinction  on 
the  legal  principle  that  all  trespasses  are  several  as  well  as 
joint,  without  inquiring  into  the  validity  of  this  reason,  if  it 
be  true.  We  ask  if  it  be  true?  Will  it  be  said  that  the  ac- 
tion of  trespass  is  the  only  remedy  given  for  this  injury  ? 
Can  it  be  denied  that  an  action  on  the  case  for  money  had 
and  received  to  the  plaintiff's  use  might  be  maintained?  We 
think  it  cannot ;  and  if  such  an  action  might  be  maintained, 


TOBIX     \'.     WAI.KINSMAW.  :».■) 

no  plausible  ivasoii  suggests  itself  to  us  tor  llic  (i|>iiii()ii  tliat 
an  injunction  may  not  be  awarded  to  restrain  tlie  agent  witli 
as  nuicli  propriety  as  it  miglit  Ije  aVv'arded  to  restrain  tlie 
principal,  could  the  principal  be  made  a  party."  It  was  on 
the  ground,  then,  that  the  equitable  action  for  money  had  and 
received  could  be  nudntained  against  the  agent — lor  money  in 
his  hands  and  received  by  him  in  legal  consideration  to  the 
use  of  plaintiff — that  C.  J.  Marshall  uses  the  observations 
quoted  to  sustain  the  proposition  that  injunction  might  issue 
to  restrain  the  payment  over  by  the  agent  to  his  })rincipal. 
Can  this  apply  to  the  case  at  bar?  No  one  pretends  that 
such  action  could  lie  against  defendants  in  this  case.  Jn- 
dependently  of  all  other  views,  there  is  one  which  covers  this 
whole  case  and  ])recludes  the  idea  that  it  can  control  the  one 
at  bar.  It  has  been  shown  that  the  absent  parties  are  indis- 
pensable in  this  case.  Such  was  not  the  fact  in  the  case  relied 
on.  The  state  of  Ohio  was  but  a  necessary  party,  and  there 
was  a  discretion  in  the  court  to  dispense  with  such  party. 
True,  the  interest  of  the  state,  in  (juantity,  extended  to  the 
whole  amount  in  controversy  ;  but  what  was  the  nature  of  that 
interest?  It  was  not  a  vested  nor  an  equitable  interest.  It 
was  never  in  the  possession  of  the  absent  i)arty,  nor  had  the 
state  an  equitable  right  to  it,  for  the  court  never  could  recog- 
nize, the  po.ssession  of  a  fund,  or  an  equitable  right  to  posses- 
sion in  the  principal,  wdiere  that  fund  has  been  raised  in 
fraudem  legis  by  the  agent.  The  object  of  the  bill  was  to 
arrest  the  fund  in  its  transit  from  the  agent  to  the  princij)al. 
Hence  the  nature  of  the  interest  held  by  the  state  was,  to  use 
the  language  of  Mr.  Clay  in  his  argument,  "  a  collatei'al  and 
contingent  interest,"  which  will  not  make  a  party  who  must 
be  joined.  Hence,  again.  Mi".  Justice  Curtis,  in  1855,  in  the 
case  of  Shields  v.  Barrow,  17  How.,  130,  in  his  classification 
of  parties,  enumerates  several  instances  of  the  diflerent  kinds 
of  parties,  excluding  the  case  of  Osborn  v.  The  Hank  of  the 
United  States  from  the  class  of  indispensable  and  including  it 
among  that  of  necessary  parties,  wdiich  latter,  as  we  have  seen, 
may,  under  peculiar  circumstances,  be  dispensed  with. 

It  is  by  attention  to  the  distinction  between  necessary  and 
indispensable  parties  that  the  numerous  decisions  of  the  courts, 
made  in  the  application  of  the  general  rule,  ma}'  be  harmon- 
ized. 

Cases  have  been  referred  to  in  which   jjcrsons  who  are  witli- 


94  EQUITY    PLEADING. 

out  the  reach  of  the  process  of  the  court  have  been  dispensed 
with  ;  but  in  all  such  it  will  be  found  that  the  absent  persons 
were  either  formal  or  necessar}^  parties,  but  not  deemed  indis- 
pensable. 

In  this  case  I  am  satisfied  that  the  owners  of  the  mines  are 
parties  whose  interests  must  necessarily  be  affected  by  any 
decree  which  can  be  made  in  conformity  with  the  prayer  of 
this  bill.  Cases  are  also  cited  to  show  that  the  courts  of  the 
United  States  will  consider  the  rule  as  to  parties  flexible 
where  the  absent  persons  who  should  be  made  parties  are  out 
of  the  reach  of  the  process  of  the  court ;  but  in  each  of  them 
it  will  be  found  that  the  utmost  extent  to  which  a  relaxation 
has  been  carried  has  been  to  dispense  with  a  necessary  party 
onl3^  But  there  is  one  feature  in  this  case  which  distin- 
guishes it  from  all  others.  It  is  that  two  of  the  absent  per- 
sons whose  interest  would  be  affected  by  a  decree  are  residents 
of  this  city  and  within  the  reach  of  the  process  of  this  court. 
The  only  reason  for  their  omission  as  parties  is  the  fact  that 
their  introduction  would  oust  the  jurisdiction  of  this  court. 
But  if  bringing  them  before  the  court  this  case  would  be 
beyond  its  jurisdiction,  can  the  court  by  indirection  adjudi- 
cate upon  their  rights  and  thus  do  indirectly  what  it  could 
not,  rightfully,  directl}'  do?     I  think  not. 

The  present  motion  is  therefore  denied,  and  it  is  ordered 
accordingly. 

MORGAN  V.  MORGAN. 
(2  Wheaton.  290-302.     1817.) 

Appeal  from  U.  S.  Circuit  Court,  District  of  Kentucky. 

Opinion  by  Marshall,  C.  J. 

In  this  case  two  questions  respecting  the  formal  proceedings 
of  the  circuit  court  have  been  made  by  the  counsel  for  the 
appellant.  The  first  is,  that  one  of  the  complainants  in  the 
original  suit  having  settled  in  the  state  of  Kentucky  after  this 
bill  was  filed,  that  court  could  no  longer  entertain  jurisdiction 
of  the  cause  and  ought  to  have  dismissed  the  bill. 

We  are  all  of  opinion  that  the  jurisdiction  having  once 
vested  was  not  divested  by  the  change  of  residence  of  either  of 
the  parties. 

2d.  It  appearing  from  the  will  that  at  its  date  the  testator 
had  a  child  who  is  not  a  party  in  this  suit,  the  bill  ought  to 
be  dismissed,  or  the  decree  opened  and  the  cause  sent  back  to 


ELMKNDOKF    V.    TAYI.OU.  05 

make  proper  jmrties.  It  is  unqiiesti()iial)lc  (hat  all  the 
co-heii's  of  the  deceased  oiii;ht  to  be  parties  to  this  suit,  either 
plaintitl' or  defendant ;  and  a  specific  performance  ought  not 
to  be  decreed  until  they  shall  be  all  before  the  court.  It 
wouhl,  perhaps,  be  not  enough  to  say  that  the  child  named  in 
tlie  will  and  not  made  a  party  is  most  ])robably  (U'ad.  In 
such  a  case  as  this,  the  fact  of  his  death  ought  to  be  proved, 
not  presumed.  But  as  the  opinion  of  the  court  on  the  merits 
of  the  cause  will  render  it  unnecessary  to  decide  this  question, 
it  is  thought  best  for  the  interest  of  all  })arties  to  proceed  to 
the  consideration  of  another  point  which  will  finally  tei'minate 
the  contest,  so  far  as  it  is  to  be  determined  in  a  court  of 
equity. 

[Note. — Only  so  much  of  this  case  is  reported  as  relates  to  Equity  Pleading 
and  Practice.] 

ELMEXDORF  v.  TAYLOR. 

(10  Wheaton,  152-177.     1825.) 

Appeal  from  U.  S.  Circuit  Court,  District  of  Kentucky. 

Opinion  by  Marshall,  C.  J. 

Statement  of  Facts. — This  suit  was  brought  by  the  ap- 
pellant, Elmendorf,  in  the  court  for  the  seventh  circuit  and 
district  of  Kentucky,  to  obtain  a  conveyance  of  lands  held  by 
the  defendants  under  a  prior  grant,  and  under  entries  which 
are  also  older  than  the  entry  of  the  ])laintiff.  As  the  defend- 
ants do  not  adduce  their  entries,  and  rely  entirely  on  their 
patent,  the  case  depends  on  the  validity  of  the  plaintiff's  entry. 
That  was  made  in  April,  1784,  and  was  afterwards,  in  July  of 
the  same  year,  explained,  or  amended,  so  as  to  read  as  follows  : 
"  Walker  Daniel  enters  eight  thousand  acres,  beginning  at  the 
most  southwestwardly  corner  of  Duncan  Rose's  survey  of  eight 
thousand  acres  between  Floyd's  Fork  and  Bull  Skin  ;  thence 
along  his  westwardly  line  to  the  corner ;  thence  the  same 
course  with  James  Kem})'.^  line,  north  two  degrees  west,  nine 
hundred  and  sixt3'-four  poles  to  a  survey  of  John  Lewis  for 
twenty-two  thousand  acres  ;  thence  with  Lewis'  line,  and  from 
the  beginning  south  seven  degrees  west,  till  a  line  parallel 
with  the  first  line  will  include  the  quantity." 

As  this  entry  begins  at  "  the  most  southwestwardly  corner 
of  Duncan  Rose's  survey  of  eight  thou.sand  acres  between 
Floyd's  Fork  and  Bull  Skin,"  the  first  inquiry  is,  whether 
this  survey  was  at  the  time  an  object  of  sufficient  notoriety  to 


96  EQUITY    PLEADING. 

give  validity  to  an  entry  calling  for  one  of  its  corners  as  a 
beginning.  It  is  not  pretended  that  the  survey  itself  had 
acquired  this  notoriety;  but  the  plaintifi'  contends  that  it  had 
become  a  matter  of  record,  and  that  subsequent  purchasers 
were,  on  that  account,  bound  to  know  its  position,  in  like 
manner  as  they  are  bound  to  know  the  position  of  entries. 
The  land  law  prescribes  that  surveys  shall  be  returned  to  the 
office,  and  recorded  in  a  record  book,  to  be  kept  for  that  pur- 
pose by  the  principal  surveyor,  within  three  months  from  the 
time  of  their  being  made.  They  are  to  be  returned  to  the 
land  office  in  twelve  months  from  their  date,  during  which 
time  the  surveyor  is  forbidden  to  give  a  copy  to  any  person 
other  than  the  owner. 

It  is  contended  by  the  defendants  that  this  prohibition  to 
give  a  copy  of  the  plot  and  certificate  of  survey  excludes  the 
idea  of  that  notoriety  which  is  ascribed  to  a  record.  Though 
inserted  for  preservation  in  a  book  which  is  denominated  a 
book  of  record,  it  does  not  become,  in  fact,  a  record  until  it 
shall  partake  of  that  characteristic  quality  of  a  record,  on 
which  the  obligation  to  notice  it  is  founded,  being  accessible 
to  all  the  world.  Were  even  an  inspection  of  the  book 
demandable  as  a  matter  of  right,  which  the  defendants  deny, 
that  inspection  would,  they  say,  from  the  nature  of  the  thing, 
be  of  no  avail,  unless  a  copy  was  also  attainable.  They 
insist,  therefore,  that  the  notoriety  of  these  surveys  is  not  to 
be  implied  from  the  fact  that  the  three  months  had  expired 
during  which  they  were  directed  by  law  to  be  recorded. 

The  plaintiff  contends  that  the  book  of  surveys  has  every 
characteristic  of  a  record  except  tliat  the  surveyor  is  restrained 
from  granting  copies  until  the  time  limited  by  law  for  the 
return  of  surveys  to  the  land  office  shall  have  expired,  and 
denies  that  the  notoriety  attached  to  a  record  is  dependent 
entirely  on  the  right  to  demand  a  copy  of  it.  He  maintains 
the  right  to  inspect  it,  and  insists  that  this  right  has  been 
considered  by  the  legislature  as  giving  sufficient  notice  to  all 
persons  interested  in  the  property  to  enter  a  caveat  against  the 
issuing  of  a  patent,  from  which  he  implies  that  it  is  intended 
as  a  record  to  give  notice,  although  a  copy  of  it  cannot  be 
obtained.  Were  this  question  now  for  the  first  time  to  be 
decided,  a  considerable  contrariety  of  opinion  respecting  it 
would  prevail  in  the  court;  but  it  will  be  unnecessary  to  dis- 
cuss it.  if  the  point  shall  appear  to  be  settled  in  Kentucky. 


I 


i:r,Mi:Ni)()]{i'   v.  tavi.ih;.  ;•/ 

Tliiy  coui't  lias  uniformly  jiroroscd  its  (lisptisilioii,  in  i-ascs 
de})c'n<linu  on  tlii'  laws  of  a  particular  state,  to  adoftt  tlie  con- 
struction wIulIi  the  courts  of  the  state  have  given  to  those 
\a\\'s.  This  course  is  founded  on  the  principle,  su{)j)os('d  to  he 
universally  recognized,  that  the  judicial  de])artnient  of  every 
government,  where  such  dei)artment  exists,  is  the  appropriate 
organ  for  construing  the  legislative  acts  of  that  government. 
Thus,  no  court  in  the  universe  which  professed  to  he  governed 
hy  principle  would,  we  presume,  undertake  to  say  that  the 
courts  of  Great  Britain,  or  of  France,  or  of  any  other  nation, 
had  misunderstood  their  own  statutes,  and  therefore  erect 
itself  into  a  tribunal  which  should  correct  such  misunder- 
standing. We  receive  the  construction  given  by  the  courts 
of  the  nation  as  the  true  sense  of  the  law,  and  feel  ourselves 
no  more  at  liberty  to  depart  from  that  construction  than  to 
depart  from  the  words  of  the  statute.  On  this  ])iinciple  the 
construction  given  by  this  court  to  the  con.stitution  and  laws 
of  the  United  States  is  received  by  all  as  the  true  construction; 
and  on  the  same  principle,  the  construction  given  by  the 
courts  of  the  several  states  to  the  legislative  acts  of  those 
states  is  received  as  true,  unless  they  come  in  conflict  with 
the  constitution,  laws  or  treaties  of  the  United  States.  If, 
then,  this  question  has  been  settled  in  Kentucky,  we  must 
suppose  it  to  be  rightly  settled. 

2.  It  is  contended  that  he  is  a  tenant  in  common  with 
others,  and  ought  not  to  be  permitted  to  sue  in  equity,  without 
making  his  co-tenants  parties  to  the  suit. 

This  objection  does  not  affect  the  jurisdiction,  but  addresses 
itself  to  the  policy  of  the  court.  Courts  of  equity  require  that 
all  the  parties  concerned  in  interest  shall  be  brought  before 
them,  that  the  matter  in  controversy  may  be  finally  settled. 
This  equitable  rule,  however,  is  framed  by  the  court  itself,  and 
is  subject  to  its  discretion.  It  is  not,  like  the  description  of  par- 
ties, an  inflexible  rule,  a  failure  to  observe  which  turns  the 
party  out  of  court,  because  it  has  no  jurisdiction  over  his 
cause;  but,  being  introduced  by  the  court  itself,  for  the  j)ur- 
poses  of  justice,  is  susceptible  of  modification  for  the  promotion 
of  tliose  purposes.  In  this  ca.se  the  persons  who  are  alleged  to 
be  tenants  in  common  with  the  ])laintiffs,  appear  to  be  entitled 
to  a  fourth  part,  not  of  the  whole  tract,  but  of  a  specially 
described  portion  of  it,  which  may  or  may  not  interfere  with 
the  part  occupied  by  the  defendants.  Neither  the  liill  nor 
7 


98  EQUITY    PLEADING. 

answers  allege  such  an  interference,  and  the  court  ought  not, 
witliout  such  allegation,  to  j^resunie  it.  Had  the  decree  of  the 
circuit  court  been  in  favor  of  the  plaintiff,  and  Imd  this  objec- 
tion to  it  been  deemed  sufficient  to  induce  this  court  to  reverse 
it,  and  send  back  tlie  case  for  tlie  examination  of  this  fact,  it 
could  never  have  justified  a  dismission  of  the  bill  witliout 
allowing  the  plaintiff  an  opportunity  of  showing  that  he  was 
the  sole  owner  of  the  lands  in  dispute.  In  addition  to  these 
observations,  it  may  be  proper  to  say  that  the  rule  which  re- 
quires that  all  persons  concerned  in  interest,  however  remotely, 
should  be  made  parties  to  the  suit,  thougli  applicable  to  most 
cases  in  the  courts  of  the  United  States,  is  not  applicable  to 
all.  In  the  exercise  of  its  discretion,  the  court  will  require 
the  plaintiff  to  do  all  in  his  power  to  bring  every  person  con- 
cerned in  interest  before  the  court.  But,  if  the  case  may  be 
completely  decided  as  between  the  litigant  parties,  the  circum- 
stance that  an  interest  exists  in  some  other  person,  whom  the 
process  of  the  court  cannot  reach,  as  if  such  part}'  be  a  resident 
of  some  other  state  ought  not  to  prevent  a  decree  upon  its 
merits.  It  would  be  a  misapplication  of  the  rule  to  dismiss 
the  plaintiff's  bill  because  he  has  not  done  that  which  the  law 
will  not  enable  him  to  do. 

[Note. — Only  so  much  of  this  case  is  reported  as  relates  to  Equity  Pleading 
and  Practice.] 

GRAY  V.  LARRIMORE. 
(Circuit  Court  for  California:  4  Sawyer,  638-653;  2  Ahbott.  542.     1867.) 

Statement  of  Facts. — Action  to  recover  certain  real 
estate  in  the  cit}'  of  San  Francisco.  Both  parties  claimed 
under  Franklin  C.  Gray;  the  plaintiffs,  as  his  widow  and 
infant  child;  the  defendants  as  the  purchasers  under  a  judicial 
sale  made  by  order  of  a  district  court  of  the  state  of  California 
in  a  case  in  which  W.  H.  Gray,  who  claimed  to  be  a  partner 
of  F.  C.  Gray,  was  the  plaintiff,  and  the  administrators  of  F. 
C.  Gray  and  his  widow  and  child  were  defendants.  The 
widow  and  child  being  non-residents,  process  by  publication 
was  resorted  to  to  bring  them  before  the  court. 

After  this  suit  was  instituted  another  like  suit  was  instituted 
by  C.  G.  Eaton,  who  also  claimed  to  be  a  i)artner  with  F.  C. 
Gray.  The  suits  were  consolidated,  and  the  decree  ordering 
a  sale  was  made  in  the  conjoint  suit.  The  chief  question 
raised  by  the  pleadings  and  testimony  was  whether  the  decree 


GKAY    V.    LAKRIMoUE.  {lU 

obtained  in  that  snit  was  binding- nj)un  the  non-resident  widow 
and  infant. 

Opinion  by  Field,  J.  ' 

It  is  a  familiar  doctrine  that  the  jurisdiction  of  any  court 
over  either  the  person  of  the  defendant  or  of  the  subject- 
matter  may  be  inquired  into  whenever  any  right  or  Ijenetit  is 
chiimed  under  its  proceedings.  The. want  of  jurisdiction  will 
render  its  judgments  and  decrees  miavailable  for  any  ])uri)()se. 
Borden  v.  Fitch,  15  John.,  140;  Williamson  v.  Berry,  8  How., 
541.  The  doctrine  is  as  applicable  to  the  proceedings  of 
courts  of  superior  or  general  authority  as  it  is  to  courts  of 
inferior  or  limited  authority.  The  difference  between  these 
courts  in  this  respect  relates  only  to  the  presumptions  raised 
by  the  law.  With  reference  to  courts  of  su[)erior  or  general 
authority  jurisdiction  is  presumed  until  the  contrary  a])i)ears; 
but  with  reference  to  courts  of  inferior  or  limited  authority, 
the  jurisdiction  must  be  affirmatively  shown  by  parties  who 
claim  anv  right  or  benefit  under  their  proceedings.  Mills  v. 
Martin,  19  John.,  83;  Bloom  v.  Burdick,  1  Hill,  140. 

The  general  presumption  indulged  in  support  of  the  judg- 
ments and  decrees  of  the  superior  courts  is,  however,  limited 
to  jurisdiction  over  persons  within  their  territorial  limits; 
persons  who  can  be  reached  by  their  process,  and  also  over 
proceedings  which  are  in  accordance  with  the  course  of  the 
common  law.  Whenever  it  appears,  either  from  inspection  of 
the  record  or  by  evidence  outside  the  record,  that  the  defend- 
ants were  at  the  time  of  the  alleged  service  upon  them  beyond 
the  reach  of  the  process  of  the  court,  the  presumption  ceases, 
and  the  burden  of  establishing  the  jurisdiction  over  them  is 
thrown  upon  the  party  who  invokes  the  benefit  or  protection 
of  its  judgments  and  decrees.  So,  too,  the  presumption  ceases 
when  the  proceedings  are  not  in  accordance  with  the  course  of 
the  common  law.  With  reference  to  such  proceedings  the 
superior  courts,  though  in  other  respects  possessing  general 
authorit}^  exercise  only  a  limited  and  special  jurisdiction. 

In  the  bills  of  complaint  in  the  two  actions  of  Gray  and 
Eaton,  the  absence  of  the  infant  Franklina  from  California 
and  her  residence  in  another  state  are  alleged.  The  [)resump- 
tion  of  jurisdiction  over  her  person  by  the  district  court  is 
thereby  repelled,  and  it  remains  for  the  defendants  to  show 
that  by  means  provided  by  the  statute  in  such  cases  the  juris- 
diction was  acquired.     The  statutes  substitute,  in  cases  of  a 


100  EQUITY    PLEADING. 

iioii-resideiit  and  absent  defendant,  constructive  service,  by 
publication  of  the  summons,  in  place  of  personal  service;  and 
it  designates  tiie  facts  which  must  appear  to  authorize  an 
order  for  the  publication,  the  period  for  which  the  })ublieation 
must  be  made,  and  the  manner  in  which  such  publication 
must  be  pi'oved.  The  statute  is  in  derogation  of  the  common 
law,  and  its  provisions  m.ust  be  strictly  pursued.  A  failure  to 
com}>ly  with  any  of  the  particulars  stated  will  be  fatal  unless 
cured  by  the  voluntary  appearance  of  the  party. 

The  doctrine  of  equity,  when  some  of  the  parties  are  out  of 
the  jurisdiction  of  the  court,  is  well  stated  by  Mr.  Justice  Story 
in  his  Equity  Pleadings,  sees.  81,  82  and  83.  After  comment- 
ing upon  the  general  rule  that  all  persons  legally  or  benefici- 
all}'  interested  in  the  subject-matter  of  a  suit  in  equity  should 
be  made  [)arties,  and  stating  an  exception  with  reference  to 
persons  without  the  jurisdiction,  who  cannot  consequently  be 
reached  by  the  process  of  the  court,  the  learned  justice  says : 
"  It  is  an  important  qualification  ingrafted  on  this  particular 
exception  that  persons  who  are  out  of  the  jurisdiction,  and  are 
ordinarily  proper  and  necessary  parties,  can  be  dispensed  with 
only  when  their  interests  will  not  be  prejudiced  by  the  decree, 
and  when  they  are  not  indispensable  to  the  just  ascertainment 
of  the  merits  of  the  case  before  the  court.  The  doctrine  ordi- 
narily laid  down  on  this  point  is  that  when  the  persons  who 
are  out  of  the  jurisdiction  are  merely  passive  objects  of  the 
judgment  of  the  court,  or  their  rights  are  merely  incidental  to 
tliose  of  the  parties  before  the  court,  then,  inasmuch  as  a  com- 
plete decree  ma}'  bo  obtained  without  them,  they  may  be  dis- 
pensed with.  But  if  such  absent  persons  are  to  be  active  in 
the  performance  or  execution  of  the  decree,  or  if  they  have 
rights  wholly  distinct  from  those  of  the  other  parties,  or  if  the 
decree  ought  to  be  pursued  against  them,  then  the  court  can- 
not pro])erly  proceed  to  a  determination  of  the  whole  cause  with- 
out their  being  made  parties.  And  under  such  circumstances, 
their  being  out  of  the  jurisdiction  constitutes  no  ground  for 
proceeding  to  any  decree  against  them  or  their  rights  or  inter- 
ests ;  but  the  suit,  so  far  at  least  as  their  rights  and  interests 
are  concerned,  should  be  stayed  ;  for  to  this  extent  it  is  un- 
avoidably defective.  In  many  instances  the  objection  will  be 
fa1:al  to  the  whole  suit." 

The  case  of  a  bill  brought  by  one  partner  against  several 
other  copartners,  one  of  whom  was  out  of  the  jurisdiction. 


OKAY    V.    LAKKIMOKE.  Kll 

praying  for  an  account  and  dissolution  of  the  coiiartncrsldp,  is 
given  by  Story  in  illustration  of  this  last  position,  that  the 
objection  will  sometimes  be  fatal  to'the  whole  suit,  for  "the 
absent  partner,"  says  the  justice,  "would  have  a  distinct  and 
independent  interest,  and  would  seem  to  be  an  indispensable 
party,  since  the  decree  must  affect  that  interest,  and,  indeeil, 
would  pervade  the  entire  operations  of  the  partnership."  The 
case  of  Browne  v.  Blount,  2  Russ.  &  Mylne,  83,  is  also  referred 
to  as  illustrating  the  same  position.  In  that  case  a  judgment 
creditor  of  one  Blount  had  sued  out  a  writ  of  elegit  upon  his 
judgment,  and  had  filed  his  bill  to  reach  certain  real  estates 
which  were  vested  in  trustees  upon  certain  trusts,  under  which 
Blount  was  entitled  to  the  rents  and  profits  during  his  life. 
The  trustees  and  certain  parties  interested  under  the  trusts, 
and  others  having  a  charge  upon  the  trust  estates,  were  made 
parties,  but  Blount  was  abroad,  and  had  been  for  years  previ- 
ous to  the  institution  of  the  suit,  and  was  not,  therefore,  made 
a  party.  The  court  held  that  "  Blount  being  the  person  whose 
interests  were  sought  to  be  affected  by  the  decree,  the  suit  could 
not  proceed  in  his  absence."  See  in  further  illustration  of  the 
doctrine  stated:  Midford's  Chan.  PL,  31,  32;  Inchiquin  v. 
French,  1  Ambler,  33  ;  Fell  v.  Brown,  2  Brown's  Chan.  Cas., 
276;  Beaumont  v.  Meredith,  3  Ves.  &  Beames,  180;  Evans  r. 
Stokes,  1  Keen,  32;  Russell  v.  Clark's  Executors,  7  Cranch,  98; 
Mallow  V.  Hinde,  12  Wheat.,  194;  Fuller  v.  Benjamin,  23 
Me.,  255;  Sparr  v.  Scoville,  3  Cush.,  578. 

In  Evans  v.  Stokes  the  bill  was  filed  to  have  the  affairs  of  a 
joint-stock  company,  which  was  a  co-partnership,  wound  up 
and  settled  under  the  decree  of  the  court,  and  accounts  of  the 
partnership  taken,  and  a  sale  of  some  portion  of  the  property 
made  by  the  directors  set  aside,  and  it  was  held  that  all  the 
members  of  the  company,  however  numerous,  must  be  made 
parties.  "  It  is  perfectly  obvious,"  said  the  master  of  the 
rolls,  "  that  a  suit,  where  all  the  accounts  of  the  partnership 
are  to  be  taken,  and  the  rights  of  all  the  pai'ties  are  to  be  de- 
termined, as  between  themselves,  and  under  the  various  cir- 
cumstances in  which  the}'  stand  in  relation  to  each  other, 
some  of  them,  for  instance,  having  paid  their  calls,  and  others 
having  omitted  to  do  so,  cannot  be  i)rosecuteil  in  the  ai)sence 
of  any  of  those  parties." 

The  case  of  Fuller  v.  Benjamin  is  equally  })ointed.  In  that 
case  four  persons  had  been  co-partners,  two  of  whom   had   be- 


102  EQUITY    PLEADING. 

come  insolvent,  and  were  out  of  the  state;  the  suit  was  brought 
by  one  of  the  partners  against  the  solvent  member.  On 
demurrer  for  want  of  parties  the  court  said:  "  In  cases  of 
partnership  it  must  be  difficult,  if  not  impracticable,  to  pro- 
ceed in  equity  without  the  presence  of  all  the  co-partners  or 
their  legal  representatives.  Each  must  be  expected  to  have 
claims,  either  for  services  rendered  or  advances  made,  without 
the  adjustment  of  which  it  will  be  impossible  to  ascertain 
what  may  be  due  from  or  to  the  joint  concern  by  each;  or 
what  just  claim  any  one  or  more  of  them  may  have  against 
any  one  or  more  of  the  others.  Until  such  an  ascertainment 
shall  have  been  made  it  will  be  impossible  to  pass  a  decree, 
which  shall  be  founded  upon  the  principles  of  justice,  as  to 
their  several  rights."  And  again  :  "  The  plaintiff'  in  this  case 
would  seem  to  be  without  remedy,  either  at  law  or  in  equity. 
In  Story  on  Equity  Pleadings,  sections  82,  <S3,  152  and  218,  it 
is  clearly  shown  that  a  court  of  equity  cannot  take  cognizance 
of  a  case  in  the  predicament  of  the  one  here  exhibited. 
Although  the  partners  not  present  are  insolvent,  yet  are  they 
indispensable  parties  whose  rights  might  be  affected  by  a 
decree,  and  who  must  be  })resent  to  be  able  to  afford  informa- 
tion as  to  their  own  claims  in  connection  with  those  of  the 
others,  and  if  bankrupts,  their  assignees  should  be  made 
parties." 

The  condition  of  the  alleged  co-partners.  Gray  and  Eaton, 
might  have  been  similar  to  that  of  the  plaintiff  in  this  last 
case — without  relief  either  at  law  or  in  equity — had  tliere  not 
been  a  provision  in  the  legislation  of  the  state  for  .securing 
service  by  publication  upon  the  non-resident  infant.  As  they 
did  not  pursue  the  course  pointed  out  by  the  statute,  their 
present  position  with  reference  to  the  subsequent  proceedings, 
and  the  decree  rendered,  is  precisely  what  it  would  have  been 
if  no  such  statute  had  existed. 

The  principle  upon  which  the  several  cases  cited  proceed  is 
fundamental,  and  underlies  the  administration  of  justice  in  all 
courts  of  equity. 

The  conclusion  which  we  have  reached  renders  it  unneces- 
sary to  pass  upon  the  objection  taken  to  the  introduction  of 
the  decree  of  April  7,  1856.  The  decree  has  never  been  pro- 
duced upon  any  previous  trial  of  the  actions  brought  by  the 
widow  and  child  ;  it  is  not  embraced  in  the  judgment  roll  of 
the  consolidated  action  of  Gray  &  Eaton  ;  it  did  not  form  any 


(iRAY    V.    LARI{1.M()I;K.  103 

portion  of  the  record  which  was  presented  in  that  action  to  the 
supreme  court  of  the  state,  or  of  the  record  in  the  recent  action 
of  ejectment  of  Gray  against  P>rionar<Tello,  before  the  supreme 
court  of  the  United  States.  For  nearly  nine  years  the  original 
document,  signed  by  the  district  judge,  has  hiin  unknown  in 
the  desk  of  the  commissioner  in  this  city.  It  appears,  also, 
that  subse([uently,  on  the  14th  of  May,  1856,  the  decree  was 
amended  for  some  alleged  want  of  conformity  to  tlie  previous 
report  of  the  commissioner,  and  that  a  new  decree  was  substi- 
tuted in  its  place.  It  may  well  be  doubted  whether,  under 
these  circumstances,  the  decree  should  have  been  received  in 
evidence;  but,  as  stated,  the  question  of  its  admissibility  is 
rendered  immaterial  from  the  conclusions  reached  on  other 
grounds. 

The  tax  deeds  produced  b}'  the  defendant  Larrimore  do  not 
aid  the  defense.  He  was  in  possession  of  the  premises  at  the 
time  the  taxes  were  levied  and  the  sales  by  the  tax  collector 
were  made,  and  it  w^as  his  duty  to  have  paid  the  taxes.  Moss 
r.  Shear,  25  Cal.,  38,  covers  his  case.  Nor  did  the  assessment 
roll  for  the  years  in  which  the  taxes  were  unpaid  show  any 
valuation  of  the  propertv.  Ilurlbutt  r.  Butenop,  27  Cal.,  50  ; 
Woods  V.  Freeman,  1  Wall.,  398. 

As  to  the  rents  and  profits  of  the  premises  since  the  defend- 
ant Larrimore  went  into  possession,  there  is  some  conflict  in 
the  evidence.  Our  conclusion  is  that  the  premises  have  been 
worth  to  him,  since  May  20,  185G,  $100  a  month,  and  that 
amount  will  be  found  as  the  monthly  rents  and  profits. 

The  plaintiffs  are  entitled  to  a  joint  judgment  against  all 
the  defendants  for  the  possession  of  the  premises  in  controversy, 
and  the  plaintiff  Franklina  to  a  several  judgment  against  the 
defendant  Larrimore  for  one-half  of  the  estimated  rents  and 
profits  from  May  20,  1856  ;  and  the  plaintiff  Matilda  to  a 
several  judgment  against  him  for  the  remaining  half  of  the 
rents  and  profits,  commencing  three  years  before  the  filing  of 
the  complaint  in  the  present  action — the  rents  and  [)rofits  to 
be  calculated  in  both  cases  up  to  this  date.  Galpin  v.  Page, 
18  Wall.,  350  ;  Same  Case,  3  Saw.,  93  ;  also,  Neff  v.  Pennoyer, 
3  id.,  274. 

[Note. — Only  so  much  of  tliis  case  is  reported  a.s  relates  to  Ecjviity  Pleading 
and  Practice.] 


104  EQUITY    PLEADING. 

INGLE  V.  JONES. 
(9  Wallace,  486-500.     1869.) 

Opinion  by  Mr.  Justice  Swayne. 

Statement  of  Facts. — This  is  an  appeal  in  equity  from 
the  decree  of  the  supreme  court  of  the  District  of  Columbia. 
The  record  is  voluminous,  and  contains  numerous  exhibits, 
and  much  of  detail,  which  we  have  not  found  it  necessary  to 
considei'.  The  material  facts  lie  within  a  narrow  compass, 
and  the  questions  [)resented  for  our  determination  are  neither 
numerous  nor  difficult  of  solution.  On  the  22d  of  April,  1851, 
the  testatrix  and  the  appellee  entered  into  a  contract  for  the 
erection  by  the  latter  of  a  lar^e  building  in  the  city  of  Wash- 
ington. 8he  was  to  pay  for  the  structure  the  sum  of  $24,000  ; 
$5,000  on  the  1st  of  July,  1851  ;  $5,000  on  the  1st  of  October 
following,  provided  certain  parts  of  the  building  were  then 
ready  for  occupation;  and  the  remaining  $14,000  on  the  1st 
of  January,  1860,  with  interest  as  stipulated.  The  first  instal- 
ment was  duly  paid.  Nothing  has  been  paid  since.  Posses- 
sion of  those  parts  of  the  building  to  be  first  completed  was 
delivered  in  December,  1851,  and  of  the  residue  in  April, 
1852.  In  May,  1852,  Jones  sued  for  the  instalment  due  on 
the  1st  of  October,  1851,  and  recovered.  The  judgment  was 
reversed  by  this  court.  23  How.,  220.  The  declaration  was 
then  amended  by  withdrawing  the  special  counts  and  enlarg- 
ing the  ad  quod  damnum  to  $40,000,  and  a  verdict  and  judg- 
ment were  recovered  for  $22,149  and  interest.  This  judgment 
was  also  reversed.  2  Wall.,  1.  The  case  was  again  tried,  and 
a  verdict  and  judgment  were  recovered  for  $20,136.23,  with 
interest  from  the  5th  of  April,  1852,  The  auditor  of  the  court 
was  directed  to  ascertain  the  amount  of  assets  in  the  hands  of 
Ingle,  the  administrator,  Avhich  could  be  ap|)lied  in  payment 
of  the  debt.  He  reported  that  there  were  no  assets  available 
for  that  purpose.  Jones  thereupon  filed  this  bill  to  subject  the 
real  estate  therein  described  to  the  payment  of  his  demand. 

It  is  insisted  by  the  counsel  for  the  appellants  that  the 
judgment  is  erroneous  in  form,  and  is,  in  fact,  only  interlocu- 
tory. This  objection  is  well  taken.  According  to  the  statutes 
of  Maryland,  which  are  in  force  in  the  county  of  Washington, 
the  judgment,  under  the  circumstances,  should  have  been 
entered  only  for  assets  as  they  should  thereafter  come  into  the 
hands    of  the    administrator.      But    this    fact    is    immaterial. 


INGI.E    V.    .loNKS.  105 

The  case  i^  govt'iiR'd  l»y  \\\c  local  law.  Tlial  law  makes  the 
proceedings  against  the  aWniinistrator  and  tlic  licir.  when  the 
latter  proceeding  is  nt;cessarv,  entirely  independent  of  each 
other.  The  duties  of  the  adniinistratoi*  are  confined  to  tlie 
personal  estate  and  nc\cr  extend  hevond  il.  If  that  he  in- 
sufficient to  discharge'  the  debts,  and  it  he  necessary  to  I'esort 
to  the  realty  of  the  deceased  for  that  purpose,  a  proceeding 
against  tiie  heir  must  be  instituted.  In  that  event,  whatever 
has  been  done  by  the  administrator  is  without  effect  as  to  the 
property  sought  to  be  charged.  A  judgment  against  the 
administrator  is  not  evidence  against  the  heir.  The  demand 
must  be  proved  in  all  respects  as  if  there  had  been  no  jirior 
proceeding  to  efi'ect  its  collection,  and  the  statute  of  limitations 
may  be  pleaded  with  the  same  effect  as  if  there  had  Ijcen  no 
prior  recovery  against  the  personal  representative.  Statutes 
of  Maryland  of  1786  and  171*8  ;  Collinson  v.  Owens,  (>  Gill  & 
J.,  4  ;  8  Pet.,  528. 

We  have  examined  with  care  the  proofs  in  the  record  of 
the  comj)lainant's  demand  as  set  forth  in  the  bill,  and  are 
satisfied  with  the  amount  found  by  the  decree.  It  could  be 
productive  of  no  good  to  vindicate  this  view  of  the  subject  by 
entering  into  an  analytical  examination  of  the  testimony. 
We  are  not  unmindful  of  the  length  of  time  through  wdiich 
the  complainant  has  been  pursuing  his  remedy,  nor  of  the 
verdicts  which  have  been  rendered  in  the  trials  at  law.  They 
were  the  results  of  vigorously  contested  litigation,  after  the 
most  elaborate  preparation  of  the  case.  Nor  are  we  unmind- 
ful that  the  court  below,  in  the  case  before  us,  came  substan- 
tially to  the  same  conclusion.  Our  judgment,  however,  has 
been  formed  upon  grounds  wholly  apart  from  these  considera- 
tions. If  the  question  were  res  iniegra  in  this  case,  and  now 
for  the  first  time  to  be  passed  upon,  we  should  have  no 
difficulty  in  sustaining  the  decree.  We  think  the  full  amount 
found  by  the  court  is  justly  due. 

[Note. — Only  so  much  of  this  case  is  reported  as  rehites  to  Equity  Pleading 
and  Practice.  ] 


CHAPTER  IV. 


PfiOCESS ISSUANCE SERVICE. 


Rule  11. 

No  process  of  subpoena  shall  issue  from  the  clerk's  office  in 
any  suit  in  equity  until  the  bill  is  filed  in  the  office. 

liule  12. 

Whenever  a  bill  is  filed,  the  clerk  shall  issue  the  process  of 
subpoena  thereon,  as  of  course,  upon  the  application  of  the 
plaintiff,  which  shall  be  returnable  into  the  clerk's  oflBce  the 
next  rule-day,  or  the  next  rule-day  but  one,  at  the  election  of 
the  plaintiff,  occurring  after  twenty  days  from  the  time  of  the 
issuing  thereof.  At  the  bottom  of  the  subpoena  shall  be  placed 
a  memorandum,  that  the  defendant  is  to  enter  his  appearance 
in  the  suit  in  the  clerk's  office  on  or  before  the  day  at  which 
the  writ  is  returnable ;  otherwise  the  bill  may  be  taken  f)ro 
confesso.  Where  there  are  more  than  one  defendant,  a  writ  of 
subpoena  may,  at  the  election  of  the  plaintiff,  be  sued  out 
separately  for  each  defendant,  except  in  the  case  of  husband 
and  wife  defendants,  or  a  joint  subpoena  against  all  the  de- 
fendants. 

Rule  7. 

The  process  of  subpoena  shall  constitute  the  proper  mesne 
process  in  all  suits  in  ecjuity,  in  the  first  instance,  to  require 
the  defendant  to  appear  and  answer  the  exigency  of  the  bill ; 
and,  unless  otherwise  provided  in  these  rules,  or  specially  or- 
dered by  the  circuit  court,  a  writ  of  attachment,  and,  if  the 
defendant  can  not  be  found,  a  writ  of  sequestration,  or  a  writ 
of  assistance  to  enforce  a  delivery  of  possession,  as  the  case 
may  require,  shall  be  the  proper  process  to  issue  for  the  pur- 

(  106  ) 


TOLAXD    V.    SI'KA(irK.  107 

pose  of  compelling  obedience  to  any    inteilocutorv   or    tinal 
order  or  decree  of  the  court. 

Hnlc   ir>. 

The  service  of  all  process,  mesne  and  final,  shall  be  by  tlie 
marshal  of  the  district,  or  his  deputy,  or  by  some  other  per- 
son specially  a])pointed  by  the  court  for  that  purpose,  and  not 
otherwise.  Jn  the  latter  case,  the  person  serving  the  process 
shall  make  affidavit  thereof. 

liule    13. 

The  service  of  all  subpoenas  shall  be  by  a  delivery  of  a  copy 
thereof  by  the  officer  serving  the  same  to  the  defendant  per- 
sonally, or  by  leaving  a  copy  thereof  at  the  dwelling-house  or 
usual  place  of  abode  of  each  defendant,  with  some  adult  j)er- 
son  who  is  a  member  or  resident  in  the  family. 

Rule  14. 

Whenever  an}^  subpoena  shall  be  returned  not  executed  as 
to  any  defendant,  the  plaintiff  shall  be  entitled  to  another 
subpcena,  toties  quoties,  against  such  defendant,  if  he  shall  re- 
quire it,  until  due  service  is  made. 

IU(/e  Id. 

Upon  the  return  of  the  subpcena  as  served  and  executed 
upon  any  defendant,  the  clerk  shall  enter  the  suit  upon  his 
docket  as  pending  in  the  court,  and  shall  state  the  time  of  the 
entry. 

TOLAND   V.  SPRAGUE. 
(12  Petei-s,  300-338.     1838.) 

Opinion  by  Mr.  Justice  Barbour. 

Statement  of  Facts. — This  is  a  writ  of  error  to  a  judgment 
of  the  circuit  court  of  the  United  States  for  the  district  of  Penn- 
sylvania. The  suit  was  commenced  by  the  plaintiff  in  error 
against  the  defendant  in  error,  by  a  process  known  in  Penn- 
sylvania by  the  name  of  a  foreign  attachment ;  by  which,  ac- 
cording to  the  laws  of  tbat  state,  a  debtor  who  is  not  an  in- 
habitant of  the  commonwealth  is  liable  to  be  attached  by  liis 


108  EQUITY    PLEADING. 

property  found  tlierein,  to  a})pear  and  answer  a  suit  brought 
against  him  by  a  creditor. 

It  appears  upon  the  record  that  the  plaintifi'  is  a  citizen  of 
Pennsylvania,  and  the  defendant  a  citizen  of  Massachusetts, 
but  domiciled  at  the  time  of  the  institution  of  the  suit,  and 
for  many  years  before,  without  the  limits  of  the  United  States, 
to  wit,  at  Gibraltar  ;  and  when  the  attachment  was  levied 
upon  his  property,  not  being  found  within  the  district  of  Penn- 
S3dvania. 

Upon  the  return  of  the  attachment  executed  on  certain  gar- 
nishees holding  property  of  or  being  indebted  to  the  defend- 
ant, he,  by  his  attorney,  obtained  a  rule  to  show  cause  why 
the  attachment  should  not  be  quashed,  which  rule  was  after- 
wards discharged  by  the  court ;  after  which  the  defendant  ap- 
peared and  pleaded.  Issues  were  made  up  between  the  parties, 
on  which  they  went  to  trial,  when  a  verdict  and  judgment 
were  rendered  in  favor  of  the  defendant.  At  the  trial  a  bill 
of  exceptions  was  taken  by  the  plaintiff,  stating  the  evidence 
at  large,  and  the  charge  given  by  the  court  to  the  jury,  which 
will  hereafter  be  particularly  noticed  when  we  come  to  con- 
sider the  merits  of  the  case.  But  before  we  do  so  there  are 
some  preliminary  questions  arising  in  the  case  which  it  is 
proper  for  us  to  dispose  of. 

And  the  first  is,  whether  the  process  of  foreign  attachment 
can  be  properly  used  by  the  circuit  courts  of  the  United  States, 
in  cases  where  the  defendant  is  domiciled  abroad,  and  not 
found  within  tlie  district  in  which  the  process  issues,  so  that 
it  can  be  served  upon  him  ? 

The  answer  to  this  question  must  be  found  in  the  construc- 
tion of  the  eleventh  section  of  the  judiciary  act  of  1789  (1 
Stat,  at  Large,  78),  as  influenced  by  the  true  principles  of  in- 
terpretation, and  by  the  course  of  legislation  on  the  subject. 

That  section,  as  far  as  relates  to  this  question,  gives  to  the 
circuit  courts  original  cognizance,  concurrent  with  the  courts 
of  the  several  states,  of  all  suits  of  a  civil  nature,  at  common 
law  or  in  equity,  where  the  matter  in  dispute  exceeds,  exclu- 
sive of  costs,  the  sum  or  value  of  $500,  and  an  alien  is  a  party  ; 
or  the  suit  is  between  a  citizen  of  the  state  where  the  suit  is 
brought  and  a  citizen  of  another  state.  It  then  provides  that 
no  person  shall  be  arrested  in  one  district  for  trial  in  another, 
in  any  civil  action  before  a  circuit  or  district  court ;  and,  more- 
over, that  no  civil  suit  shall  be  brought  before  either  of  said 


TOLAM)    V.    SI'i:A(ii:K.  109 

courts  nuainsl  an  inlialiitanl  of  tlir  I'liitcd  JStates,  l>y  any 
original  {)roceHs,  in  any  other  district  than  tiiat  whereof  ho  is 
an  inhabitant  or  in  which  he  shall  be  found  at  the  time  of 
serving  the  writ.  As  it  r-espects  persons  who  are  inlial)itants 
or  who  are  found  in  a  })articuhir  district,  the  language  is  too 
ex})licit  to  admit  of  doubt.  The  difficulty  is  in  giving  a  con- 
struction to  the  section  in  relation  to  those  who  are  not  inhab- 
itants and  not  found  in  the  district. 

This  question  was  elaborately  argued  by  the  circuit  court 
of  Massachusetts  in  the  case  of  Picquet  v.  Swan,  re- 
ported in  5  Mason,  35.  Referring  to  the  reasoning  in  that 
case  generally  as  having  great  force,  we  shall  content  our- 
selves with  stating  the  substance  of  it  in  a  conden.sed  form 
hi  which  we  concur.  Although  the  i)roccss  acts  of  1780  (1 
Stats,  at  Large,  1)3)  and  1702  (Id.,  275)  have  adopted  the 
forms  of  writs  and  modes  of  process  in  the  several  states,  they 
can  have  no  effect  where  they  contravene  the  legislation  of 
congress.  The  state  laws  can  confer  no  authority  on  this  court 
in  the  exercise  of  its  jurisdiction,  by  the  use  of  state  process, 
to  reach  either  persons  or  property,  which  it  could  not  reach 
within  the  meaning  of  the  law  creating  it.  The  judiciary  act 
has  divided  the  United  States  into  judicial  districts.  Within 
these  districts  a  circuit  court  is  required  to  be  holden.  The 
circuit  court  of  each  district  sits  within  and  for  that  disti'ict 
and  is  bounded  by  its  local  limits.  Whatever  may  be  the 
extent  of  their  jurisdiction  over  the  subject. matter  of  suits  in 
respect  to  persons  and  property,  it  can  only  be  exercised 
within  the  limits  of  the  district.  Congress  might  have  autho- 
rized civil  process  from  any  circuit  court  to  have  run  into  any 
state  of  the  Union.  It  has  not  done  so.  It  has  not  in  terms 
authorized  any  original  civil  process  to  run  into  any  other 
district  ;  with  the  single  exception  of  subpa;nas  for  witnesses, 
within  a  limited  distance.  In  regard  to  final  process  there 
are  two  cases,  and  two  only,  in  which  writs  of  execution  can 
now  by  law  be  served  in  any  other  district  than  that  in  which 
the  judgment  was  rendered  ;  one  in  favor  of  })rivate  jiersons, 
in  another  district  of  the  same  state  ;  and  the  other  in  favor 
of  the  United  States,  in  any  j)art  of  the  United  States.  We 
think  that  the  opinion  of  the  legislature  is  thus  manifested  to 
be  that  the  })rocess  of  a  circuit  court  cannot  be  served  without 
the  district  in  which  it  is  established,  without  the  s])ccial 
authoritv  of  law  therefor. 


110  EQUITY    PLEADING. 

If  such  be  the  inference  from  the  course  of  legislation,  the 
same  interpretation  is  alike  sustained  by  considerations  of 
reason  and  justice.  Nothing  can  be  more  unjust  than  that  a 
person  should  have  his  rights  passed  upon  and  finally  decided 
by  a  tribunal,  without  some  process  being  served  upon  him 
by  which  he  will  have  notice  which  will  enable  him  to  appear 
and  defend  himself  This  principle  is  strongly  laid  down  in 
Buchanan  v.  Rucker,  9  East,  192.  Now  it  is  not  even  con- 
tended that  the  circuit  courts  could  proceed  to  judgment 
against  a  person  who  was  domiciled  without  the  United  States 
and  not  found  within  the  judicial  district  so  as  to  be  served 
with  process,  where  the  party  had  no  property  within  such 
district.  We  would  ask  what  difference  there  is,  in  reason, 
between  the  cases  in  which  he  has  and  has  not  such  property? 
In  the  one  case,  as  in  the  other,  the  court  renders  judgment 
against  a  person  who  has  no  notice  of  the  proceeding.  In  the 
one  case,  as  in  the  other,  they  are  acting  on  the  rights  of  a 
person  who  is  beyond  the  limits  of  their  jurisdiction  and  upon 
whom  they  have  no  power  to  cause  process  to  be  personally 
served.  If  there  be  such  a  difference  we  are  unable  to  per- 
ceive it. 

In  examining  the  two  restraining  clauses  of  the  eleventh 
section  we  find  that  the  process  of  capias  is  in  terms  limited  to 
the  district  within  which  it  is  issued.  Then  follows  the  clause 
which  declares  that  no  civil  suit  shall  be  brought  before  either 
of  the  said  courts  against  an  inhabitant  of  the  United  States, 
by  any  original  process,  in  any  other  district  than  that 
whereof  he  is  an  inhabitant  or  in  which  he  shall  be  found  at 
the  time  of  serving  the  writ.  We  think  that  the  true  con- 
struction of  this  clause  is  that  it  did  not  mean  to  distinguish 
between  those  who  are  inhabitants  of  or  found  within  the  dis- 
trict, and  persons  domiciled  abroad,  so  as  to  protect  the  first 
and  leave  the  others  not  within  the  protection  ;  but  that,  even 
in  regard  to  those  who  were  within  the  United  States,  they 
should  not  be  liable  to  the  process  of  the  circuit  courts,  unless 
in  one  or  the  other  predicament  stated  in  the  clause  ;  and  that 
as  to  all  those  who  are  not  within  the  United  States  it  was  not 
in  the  contemplation  of  congress  that  they  would  be  at  all 
subject,  as  defendants,  to  the  process  of  the  circuit  courts, 
which,  by  reason  of  their  being  in  a  foreign  jurisdiction,  could 
not  be  served  upon  them  ;  and,  therefore,  there  was  no  pro- 
vision whatsoever  made  in  relation  to  them. 


TOLAXD    V.    Sl'KAGUE.  Ill 

If,  indeed,  it  be  assumed  tluu  congress  acted  under  the  idea 
that  the  process  of  the  circuit  courts  could  reach  })ersons  in  a 
foreign  jurisdiction,  then  tlie  restriction  might  be  construed 
as  operating  only  in  favor  of  the  inhabitants  of  the  United 
States,  in  contradistinction  to  those  who  were  not  inhabitants  ; 
but,  upon  the  ])rinciple  which  we  have  stated,  that  congress 
had  not  those  in  contemplation  at  all,  who  w^ere  in  a  foreign 
jurisdiction,  it  is  easy  to  perceive  wliy  the  restriction  in  regard 
to  the  process  was  confined  to  inhabitants  of  the  United  States. 
Plainly,  because  it  would  not  have  been  necessary  or  pro})er 
to  apply  the  restriction  to  those  whom  the  legislature  did  not 
contemplate  as  being  within  the  reach  of  the  process  of  the 
courts,  either  with  or  w'ithout  restrictions. 

With  these  views,  we  have  arrived  at  the  same  conclusions 
as  the  circuit  court  of  Massachusetts,  as  announced  in  the  fol- 
lowing propositions,  namely  :  1.  That  by  the  general  pro- 
visions of  the  laws  of  the  United  States,  the  circuit  courts  can 
issue  no  process  beyond  the  limits  of  their  districts.  2.  That 
independently  of  positive  legislation,  the  process  can  only  be 
served  upon  persons  wdthin  tlie  same  districts.  8.  That  the 
acts  of  congress  adopting  the  state  process,  adopt  the  form  and 
modes  of  service  only  so  far  as  the  persons  are  rightfully 
within  the  reach  of  such  process,  and  did  not  intend  to  en- 
large the  sphere  of  the  jurisdiction  of  the  circuit  courts.  4. 
That  the  right  to  attach  property,  to  compel  the  appearance 
of  persons,  can  properly  be  used  only  in  cases  in  which  such 
persons  are  amenable  to  the  process  of  the  court,  in  personam ; 
that  is,  where  they  are  inhabitants  or  found  within  the  United 
States ;  and  not  where  they  are  aliens,  or  citizens  resident 
abroad,  at  the  commencement  of  the  suit,  and  have  no  inhab- 
itancy here  ;  and  we  add,  that  even  in  case  of  a  person  being 
amenable  to  process  in  "personam.,  an  attachment  against  his 
property  cannot  be  issvied  against  him,  except  as  part  of  or  to- 
gether with  process  to  be  served  upon  his  person. 

The  next  inquiry  is  whether,  the  process  of  attachment 
having  issued  improperly,  there  has  anything  been  done 
which  has  cured  the  error?  And  we  think  that  there  is 
enough  apparent  on  the  record  to  produce  that  effect.  It 
appears  that  the  party  appeared,  and  pleaded  to  issue.  Now, 
if  the  case  were  one  of  a  want  of  jurisdiction  in  the  court,  it 
would  not,  according  to  well-established  principles,  be  com- 
petent for  the  parties,  by  any  act  of  theirs,  to  give  it.     But 


112  EQUITY    PLEADING. 

that  is  not  the  case.  The  court  had  jurisdiction  over  the 
parties  and  the  matter  in  dispute ;  the  objection  was,  that  tlie 
party  defendant,  not  being  an  inhabitant  of  Pennsylvania,  nor 
found  therein,  personal  process  could  not  reach  him  ;  and  that 
the  process  of  attachment  could  only  be  properly  issued  against 
a  party  under  circumstanc.es  which  subjected  him  to  process 
in  personam.  Now  this  was  a  j)ersonal  privilege  or  exemption, 
which  it  was  competent  for  the  part}'  to  waive.  The  cases  of 
Pollard  V.  Dwight,  4  Cranch,  421,  and  Barry  v.  Foyles,  1  Pet., 
311,  are  decisive  to  show  that,  after  appearance  and  plea,  the 
case  stands  as  if  the  suit  were  brought  in  the  usual  manner. 
And  the  first  of  these  cases  proves  that  exemption  from  lia- 
bility to  process,  and  that  in  case  of  foreign  attachment,  too, 
is  a  personal  privilege,  which  may  be  waived ;  and  that 
appearing  and  pleading  will  produce  that  waiver. 

It  has,  however,  been  contended,  that  although  this  is  true 
as  a  general  proposition,  yet  the  party  can  avail  himself  of  the 
objection  to  the  process  in  this  case,  because  it  appears  from 
the  record  that  a  rule  was  obtained  by  him  to  quash  the  at- 
tachment, which  rule  was  afterwards  discharged  ;  thus  show- 
ing that  the  party  sought  to  avail  himself  of  the  objection  be- 
low, which  the  court  refused.  In  the  first  place,  it  does  not 
appear  upon  the  record  what  was  the  ground  of  the  rule  ;  but 
if  it  did,  we  could  not  look  into  it  here,  unless  the  party  had 
placed  the  objection  upon  the  record  in  a  regular  plea  ;  upon 
which,  had  the  court  given  judgment  against  him,  that  judg- 
ment would  have  been  examinable  here.  But  in  the  form  in 
which  it  was  presented  in  the  court  below,  we  cannot  act  upon 
it  in  a  court  of  error. 

The  judiciary  act  authorizes  this  court  to  issue  writs  of  error 
to  bring  up  a  final  judgment  or  decree  in  a  civil  action,  or 
suit  in  equity,  etc.  The  decision  of  the  court  upon  a  rule  or 
motion  is  not  of  that  character.  This  point,  which  is  clear 
U})on  the  words  of  the  law,  has  been  often  adjudged  in  this 
court ;  without  going  further,  it  will  be  sufficient  to  refer  to  6 
Pet.,  648  ;  9  Pet.,  4.  In  the  first  of  these  cases  the  question  is 
elaborately  argued  by  the  court,  with  a  review  of  authorities ; 
and  they  come  to  this  conclusion  that  they  consider  all 
motions  of  this  sort,. that  is,  to  quash  executions,  as  addressed 
to  the  sound  discretion  of  the  court ;  and  as  a  summary  relief, 
which  the  court  is  not  compellable  to  allow.  That  the  refusal 
to  quash  is  not,  in  the  sense  of  the  common  law,  a  judgment ; 


TOI.AM)    \.    Sl'KACUK.  113 

much  less  is  it  a  liiial  juduiiiciit.  It  is  a  mere  iiiterloeiiloiT 
order.  Even  at  cohiiikiii  law,  eiTor  diilv  lies  IVom  a  liiial 
judoment ;  and  by  the  express  provisions  ot"  the  judiciary  act, 
a  writ  of  error  lies  to  this  court  only  in  cases  of  linal  judj^- 
ments. 

Having  now  gotten  rid  of  these  })r(  liniinary  (questions,  wo 
come,  in  the  order  of  argument,  to  the  merits  of  the  case.  To 
understand  these,  it  will  be  necessary  to  look  into  the  ])lead- 
ings,  the  evidence,  and  chai-ge  of  the  court,  as  embodied  in 
the  exceptions. 

The  declaration  is  in  assninpsif,  and  originally  contained 
thiee  counts,  namely,  the  first,  a  count  charging  the  delivery 
of  certain  goods  to  the  defendant,  upon  a  promise  to  account 
and  pay  over  the  proceeds,  or  sale  thereof,  by  the  defendant ; 
and  a  breach  of  promise,  in  not  accounting,  or  paying  the  pro- 
ceeds of  the  sale.  Secondly,  a  count  in  indebitatus  assuinpsit  ; 
and  thirdly,  a  count  upon  an  account  stated.  A  rule  having 
been  granted  to  amend  the  declaration,  by  striking  out  this 
last  count,  and  that  rule  having  been  made  absolute,  we  shall 
consider  the  declaration  as  containing  only  the  first  two 
counts.  To  this  declaration  the  defendant  pleaded  the  general 
issue,  which  was  joined  by  the  plaintiff',  and  also  the  act  of 
limitations  ;  to  this  second  plea,  the  plaintiff  replied,  relying 
on  the  exception  in  the  statute  in  favor  of  such  accounts  as 
concern  the  trade  of  merchandise  between  merchant  and  mer- 
chant, their  factors  or  servants  ;  averring  that  the  money  in 
the  several  ])romises  in  the  declaration  became  due  and  pay- 
able on  trade  had  between  the  plaintiff  and  defendant,  as 
merchant,  and  merchant  and  factor,  and  wholly  concerned  the 
trade  of  merchandise  between  the  plaintiff  as  a  merchant,  and 
the  defendant  as  a  merchant  and  factor  of  the  plaintiff;  and 
averring,  also,  that  no  account  whatever  of  the  said  money, 
goods  and  merchandises,  in  the  declaration  mentioned,  or  any 
part  thereof,  was  ever  stated,  or  settled  between  them.  The 
defendant  rejoined  that  he  was  not  the  factor  of  the  plaintiff; 
and  that  the  money  in  the  several  promises  in  the  declaration 
mentioned  did  not  become  due  and  payable  in  trade  had  be- 
tween the  plaintiff  and  defendant  as  merchant,  and  merchant 
and  factor;  and  on  this,  issue  was  joined.  On  the  trial  of 
these  issues  there  were  sundry'  letters  between  the  parties,  and 
accounts  given  in  evidence,  which  are  set  forth  at  large  in  a 
bill  of  exceptions,  in  relation  to  wdiich  the  court  gave  a  chaige 


.1  14  EQUITY    PLEADING. 

to  the  jury  ;  the  jury  having  found  a  verdict  lor  the  defendant, 
and  the  court  having  rendered  a  judgment  in  his  favor,  the 
case  is  brought  by  the  pkiintiffs  into  this  court  by  writ  of 
error.  And  the  question  is,  whether  there  is  any  error  in  the 
charge  of  the  court,  as  applied  to  the  facts  of  the  case  stated  in 
the  exception.  The  court,  after  going  at  large  into  the  facts 
of  the  case,  and  the  principles  of  law  applying  to  it,  concluded 
with  this  instruction  to  the  jury  :  That  there  was  no  evidence 
in  the  cause  which  could  justify  them  in  finding  that  the  ac- 
count in  evidence  was  such  a  mutual,  open  one,  as  could  bring 
the  case  within  the  exception  of  the  act  of  limitations. 

In  deciding  upon  the  correctness  of  this  instruction,  it  is 
necessary  to  inquire  \vhat  is  the  principle  of  law  b}^  which  to 
test  the  question  whether  a  case  does  or  does  not  come  within 
the  exception  of  the  statute  in  favor  of  accounts  between  mer- 
chant and  merchant,  their  factors  or  servants.  No  principle 
is  better  settled  than  that,  to  bring  a  case  within  the  excep- 
tion, it  must  be  an  account  ;  and  that,  an  account  0[)en  or 
current.  See  2  Wms.  Saund.,  127  d,  e,  note  7.  In  2  Johns., 
200,  the  court  say  that  the  exception  must  be  confined  to 
actions  on  open  or  current  accounts ;  that  it  must  be  a  direct 
concern  of  trade ;  that  liquidated  demands,  or  bills  and 
notes  which  are  only  traced  up  to  the  trade  or  merchandise, 
are  too  remote  to  come  within  this  description.  But  tlie 
case  of  Spring  v.  Gray,  6  Pet.,  151,  takes  so  full  and 
accurate  a  review  of  the  doctrine  and  cases  as  to  render 
it  unnecessary  to  refer  to  other  authorities.  It  distinctly 
asserts  the  principle  that  the  account,  to  come  within  the 
exception,  must  be  open  or  current.  This  construction, 
so  well  settled  on  authority,  grows  out  of  the  very  purpose  for 
which  the  exception  was  enacted.  Tiiat  pur])ose  was  to  pre- 
vent the  injustice  and  injury  which  would  result  to  merchants 
having  trade  with  each  other,  or  dealing  with  factors,  and 
living  at  a  distance,  if  the  act  of  limitations  were  to  run, 
where  their  accounts  were  open  and  unsettled  ;  where,  there- 
fore, the  balance  was  unascertained,  and  where,  too,  the  state 
of  the  accounts  might  be  constantly  fluctuating,  by  continuing 
dealings  between  the  parties. 

But  when  the  account  is  stated  between  the  parties,  or  when 
anything  shall  have  been  done  by  them  which,  by  their  im- 
plied admission,  is  equivalent  to  a  settlement,  it  has  then  be- 
come an  ascertained  debt.     In  the  language  of  the  court  of 


TOLAND    V.    SPKAGUE.  115 

a])peals  of  Virginia  (4  T^oigli,  240),  "all  iiitricac}'  of  account, 
or  doubt  as  to  which  side  the  balance  ifiay  fall,  is  at  an  end  ;  " 
and  thus  the  case  is  neither  within  the  letter  nor  the  spirit  ot 
the  exception.  In  short,  when  there  is  a  settled  account,  that 
becomes  the  cause  of  action,  and  not  the  original  account, 
although  it  grew  out  of  an  account  between  merchant  and 
merchant,  their  factors  or  servants. 

Let  us  now  inquire  how  tar  this  principle  applies  to  the 
facts  of'  this  case.  It  appears  by  the  bill  of  exceptions  that 
the  facts  are  these  : 

In  the  year  1824  the  plaintiff  consigned  a  quantity  of  mer- 
chandise, by  the  ship  William  Penn,  bound  for  Gibraltar,  to 
a  certain  Charles  Pettit,  accompanied  with  instructions  as  to 
the  disposition  of  it.  Pettit,  after  arriving  at  Gibraltar,  and 
remaining  there  a  short  time,  placed  all  the  merchandise  be- 
longing to  the  plaintiff,  which  remained  unsold,  in  the  hands 
of  the  defendant,  to  be  disposed  of  by  him  for  plaintiff's  ac- 
count. The  plaintiff  produced  on  the  trial  an  account  of  the 
sales  of  the  aforesaid  merchandise,  dated  June  30,  1825,  signed 
by  the  defendant,  as  having  been  made  by  him,  amounting  in 
net  proceeds  to  $2,579.13  ;  and  showing  that  balance. 

In  September,  1825,  the  plaintiff  wrote  to  the  defendant, 
requesting  him  to  remit  to  him  the  net  proceeds  of  this  mer- 
chandise, amounting  to  $2,579.13  ;  after  deducting  therefrom 
a  bill  of  exchange  of  $1,000,  which  had  been  drawn  by  de- 
fendant in  favor  of  Charles  Pettit,  on  a  house  in  New^  York. 
Pettit  being  indebted  to  the  defendant,  as  alleged  by  him,  in 
a  large  sum  of  money,  for  advances  and  otherwise,  the  de- 
fendant refused  to  pay  the  i)laintifF  the  amount  of  the  sales  of 
the  mci'chandise  ;  and  denied  his  liability  to  account  to  him 
therefor. 

In  addition  to  the  demand  before  stated,  by  plaintiff  on  the 
defendant,  for  the  balance  of  the  account  of  sales  by  letter,  on 
the  trial  of  the  cause,  the  counsel  for  the  })laintiff,  in  opening 
the  case,  claimed  the  balance  of  an  account  between  Sprague, 
the  defendant,  and  Charles  Pettit;  being  the  precise  amount 
of  the  balance  of  the  account  of  sales,  after  deducting  the  bill 
of  exchange  for  $1,000.  It  a})pears  that  the  plaintiff  was  in 
possession  of  the  account  of  sales  as  early  as  September,  1825. 

U]>on  this  state  of  facts  a)i{)earing  in  the  record,  the  ques- 
tion is,  whether  the  cause  of  action  in  this  case  is  an  open  or 
current  account  between  the  ])laintifl"  and   defendant,  as  mer- 


116  EQUITY    PLEADING. 

chant  and  factor,  concerning  merchandise  ;  or  whether  it  is 
an  ascertained  bahmce,  a  hquidated  sum,  which,  althougli  it 
grew  out  of  a  trade  of  merchandise,  is  in  legal  effect,  under 
the  circumstances,  a  stated  account?  We  think  it  is  the 
latter. 

In  the  language  of  the  court  wlio  gave  the  charge,  we  tliink 
that  "  the  chiim  is  for  a  precise  balance,  which  was  demanded 
by  the  })laintiff  from  the  defendant  in  1825."  From  the 
nature  of  the  account  and  the  conduct  of  the  parties  there  was 
from  the  time  tlie  account  of  sales  was  received  by  the  plaintiff 
showing  the  balance,  and  demanded  by  the  plaintiff  of  defend- 
ant, no  unsettled  open  account  between  them  as  merchant 
and  mercliant,  or  merchant  and  factor.  We  agree  in  opinion 
with  the  circuit  court  tliat  there  was  a  matter  of  controversy 
brought  to  a  single  point  between  them  ;  that  is,  which  of 
them  had,  by  law,  a  riglit  to  a  sum  of  money,  ascertained  by 
consent  to  amount  to  |1,579.  That  the  nature  of  the  account 
is  not  changed  by  there  being  a  controversy  as  to  a  balance 
stated,  which  the  defendant  does  not  ask  to  diminish,  or  the 
plaintiff  to  increase  ;  and  as  neither  party  asks  to  open  the 
account,  and  both  admit  the  same  balance,  there  can  be  no 
pretense  for  saying  that  it  is  still  open.  As  the  circuit  court 
say,  tiie  question  between  them  is  not  about  the  account,  or 
any  item  in  it ;  but  as  to  the  right  of  the  defendant  to  retain 
the  admitted  balance,  to  repay  the  advances  made  to  Pettit. 
We  agree  with  the  court  that  the  mere  rendering  an  account 
does  not  make  it  a  stated  one ;  but  that  if  the  other  party  re- 
ceives the  account,  admits  the  correctness  of  the  items,  claims 
the  balance,  or  offers  to  pay  it,  as  it  may  be  in  his  favor  or 
against  him,  then  it  becomes  a  stated  account.  Nor  do  we 
think  it  at  all  important  that  the  account  was  not  made  out  as 
between  the  plaintiff  and  defendant ;  the  plaintiff  having  re- 
ceived it,  having  made  no  complaint  as  to  the  items  or  the 
balance,  but  on  the  contrary  having  claimed  that  balance, 
thereby  adopted  it ;  and  by  his  own  act  treated  it  as  a  stated 
account.  We  think,  therefore,  that  the  act  of  limitations  be- 
gan to  run  from  the  3'ear  1825,  when  that  demand  was  made  ; 
and  consequently  that  the  instruction  of  the  court  was  correct 
in  saying  that  it  was  not  within  the  exception. 

It  has,  however,  been  argued,  that  whatever  might  be  the 
conclusion  of  the  court,  as  resulting  from  the  evidence,  that 
the  defendant  had  admitted  u})on  the  record  that  the  account 


TOLAXI)    V.    SrUAfiUK.  1  1  ( 

was  an  open  one.  It  is  said  thai  the  })laintill'  having  aveni'd 
in  his  replication  that  there  was  no  account  stated  or  settled 
between  him  and  the  defendant,  and  the  defendant  not  hav- 
ing traversed  that  averment  in  his  rejoinder,  the  matter  con- 
tained in  that  averment  is  admitted.  It  is  a  rule  in  pleading, 
that  where  in  the  pleading  of  one  party  there  is  a  material 
averment,  which  is  traversable,  but  which  is  not  traversed  by 
the  other  party,  it  is  admitted.  We  think  that  the  rule  does 
not  api)ly  to  this  case,  because  the  negative  averment  in  the 
replication,  that  no  account  had  been  stated  between  the 
parties,  was  not  a  necessary  part  of  the  })laintiff's  rejdication, 
to  bring  him  within  the  exception  of  the  statute  in  relation  to 
merchants'  accounts.  Inasnuich,  then,  as  the  replication  with- 
out that  averment  would  be  sufficient,  we  do  not  consider  it 
as  one  of  those  material  averments,  the  omission  to  traverse 
which  is  an  admission  of  its  truth,  within  the  rule  before  stated. 

But  in  another  aspect  of  this  case  the  statute  of  limitations 
would  apply  to  and  bar  the  plaintiff's  claim,  if  the  account  of 
sales  were  regarded  as  having  no  operation  in  the  case.  The 
plaintiff,  standing  in  the  relation  which  he  did  to  the  defend- 
ant, as  it  respects  this  merchandise,  had  a  right  to  call  upon 
him  to  account;  he  did  make  tliat  demand,  and  the  defendant 
refused  to  render  one,  holding  himself  liable  to  account  to 
Pettit  only.  From  the  moment  of  that  demand  and  refusal 
the  statute  of  limitations  began  to  run.     See  1  Taunton,  572. 

It  was  argued  that  the  question  whether  there  was  a  stated 
account  or  not  was  a  question  of  fact  for  the  jury  ;  and  that 
therefore  the  court  erred  in  taking  that  (juestion  from  them, 
and  telling  them  that  this  was  a  stated  account.  The  answer 
is  that  there  was  no  dispute  about  the  facts  ;  and  that  the 
plaintiff  claimed  the  balance  of  the  account  as  being  the  pre- 
cise sum  due  him.  It  was  therefoie  competent  to  the  court  to 
instruct  the  jury  that  it  was  a  stated  account.  Upon  the 
whole,  we  think  there  is  no  error  in  the  judgment ;  it  is  there- 
fore affirmed,  with  costs. 

Taney,  C.  J.,  and  Justicks  Baldwix  and  W'ayxk,  dissented 
from  that  part  of  the  opinion  which  decides  that  the  circuit 
courts  have  not  the  power  to  issue  the  process  of  attachment 
against  the  pro])erty  of  a  debtor  who  is  not  a  resident  of  the 
United  States  ;  but  contending  that  the  jtoint  was  not  projierly 
before  the  court. 


118  EQUITY    PLEADING. 

EX  PAETE  GRAHAM. 

(Circuit  Court  for  Pennsylvania:  3  Washington,  456-464.     1818.) 

Opinion  by  Washington,  J. 

The  question  turns  upon  the  authority  of  the  district  or  cir- 
cuit court  of  one  district  to  issue  its  process  into  any  other 
district  to  compel  the  appearance  of  a  person  residing  or  found 
within  the  latter  jurisdiction  before  the  court  from  which  the 
process  issued  ;  or  to  stand  committed  for  any  alleged  con- 
tempt of  that  court. 

It  is  admitted  that  these  courts,  in  the  exercise  of  their  com- 
mon law  and  equity  jurisdiction,  have  no  authority,  generally, 
to  issue  process  into  another  district,  except  in  cases  where 
such  authority  has  been  specially  bestowed  by  some  law  of  the 
United  States.  The  absence  of  such  a  power  would  seem  nec- 
essarily to  result  from  the  organization  of  the  courts  of  the 
United  States,  by  which  two  courts  are  allotted  to  each  of  the 
districts  into  which  the  United  States  are  divided  ;  the  one 
denominated  a  district,  the  other  a  circuit  court. 

This  division  and  appointment  of  particular  courts  for  each 
district  necessarily  confines, the  jurisdiction  of  the  local  tribu- 
nals within  the  bounds  of  the  respective  districts  within  which 
they  are  directed  to  be  holden.  Were  it  otherwise,  and  the 
court  of  one  district  could  send  compulsor^^  process  into  any 
other,  so  as  to  draw  to  itself  a  jurisdiction  over  persons  or 
things  without  the  limits  of  the  district,  there  would  result  a 
clashing  of  jurisdiction  between  those  courts  whicli  could  not 
easily  be  adjusted,  and  an  oppression  upon  suitors  too  intoler- 
able to  be  endured. 

But  the  legislature  of  the  United  States,  from  abundant 
caution  as  it  would  seem,  has  not  left  this  subject  to  implica- 
tion. After  conferring  upon  those  courts  respectively  the 
portion  of  jurisdiction  which  congress  intended  they  should 
exercise,  the  eleventh  section  of  the  act  of  24th  September, 
1789,  chapter  20,  declares  "  that  no  person  shall  be  arrested 
in  one  district,  for  trial  in  another,  in  any  civil  action  before 
a  circuit  or  district  court ;  nor  can  a  civil  suit  be  brought  be- 
fore either  of  those  courts  against  an  inhabitant  of  the  United 
States,  by  any  original  process,  in  any  other  district  than  that 
whereof  he  is  an  inhabitant  or  in  which  he  shall  be  found  at 
the  time  of  serving  the  writ." 

These  provisions  appear  manifestly  to  circumscribe  the  juris- 


KX    TAUTK    til; A  11A.M.  1  19 

diction  of  those  courts  as  to  the  person  of  the  tlolbiulant  by  tlio 
limits  of  the  district  where  the  suit  is  brought;  and  that  tlie 
process  of  those  courts  was  considered  by  the  legishiturc  to  be 
bounded  by  the  same  limits  is  obvious  from  tlie  subsequent 
acts  passed;  the  one  on  the  2d  of  March,  1793,  chapter  22, 
section  6,  authorizing  sub[)(cnas  for  witnesses  to  attend  tlie 
courts  of  one  district  to  run  into  aii}^  other  district,  not  exceed- 
ing, in  civil  cases,  one  hundred  miles  from  the  ])lace  of  hold- 
ing the  court;  and  the  other,  on  the  od  of  March,  17'.>7, 
chapter  74,  section  G,  which  authorizes  writs  of  execution 
upon  judgments  obtained  at  the  suit  of  the  United  States  in  any 
of  their  courts  in  one  state  to  run  and  be  executed  in  an}' 
other  state  or  territory. 

It  would  seem  that  these  provisions  were  made,  not  because 
they  were  supposed  by  congress  to  be  necessary,  in  conse- 
quence of  the  eleventh  section  of  the  judicial  law,  but  because 
the  jurisdiction  of  the  courts  was  essentially  confined  by  their 
organization  within  the  limits  of  their  respective  districts;  for 
it  is  to  be  observed  that  that  section  applies  exclusively  to 
original  suits,  and  to  the  pa7iies  in  those  suits;  and  therefore 
imposed  no  restraint,  in  respect  to  writs  of  execution  and  sub- 
poenas for  witnesses,  which  could  render  the  above  provisions 
at  all  necessary. 

But  it  has  been  argued  that  tliese  restraints  are  incompati- 
ble with  the  essential  jurisdiction  of  an  admiralty  court,  more 
es])ecially  in  prize  causes. 

That  the  laws  of  the  United  States  authorize  the  distinction 
which  is  contended  for  between  the  courts  of  common  law  and 
equity,  and  the  admiralty  jurisdiction  has  not,  and  it  is  confi- 
dently believed  cannot,  be  shown. 

It  is  true  that  the  ninth  section  of  the  judiciary  act  gives  to 
the  district  courts  exclusive  original  cognizance  of  all  civil 
causes  of  admiralty  and  maritime  jurisdiction  without  limita- 
tion ;  and  it  is  not  less  true  that  the  eleventh  section  gives  to 
the  circuit  courts  original  cognizance  of  all  suits  of  a  civil  na- 
ture, at  common  law  and  in  equity,  where  an  alien  is  a  party 
or  the  suit  is  between  a  citizen  of  the  state  where  the  suit  is 
brought  and  a  citizen  of  another  state,  equally  unlimited,  ex- 
cept as  to  the  amount.  But  the  jurisdiction  of  these  courts, 
though  unlimited  as  to  the  suhject-maiter  of  which  they  have 
cognizance,  by  any  express  declaration  of  the  legislature,  is 
nevertheless  limited   in  point  of  localitij,  as  well   by   the  gen- 


120  i:qL'1TY  i'lkading. 

eral  j)iinciples  of  law  wliicli  our  courts  acknowledge  as  rules 
of  decision,  as  b}'  the  ex])ress  provisions  of  the  eleventh  sec- 
tion of  the  judiciary  law  before  mentioned.  As  to  the  first,  it 
will  be  acknowledged  that  there  is  no  law  of  congress  which 
limits  the  jurisdiction  of  the  courts  by  ihe  nature  of  the  suits  of 
which  they  have  cognizance.  By  what  law,  then,  is  it  that 
actions  of  ejectment,  dower  and  trespass,  in  relation  to  real 
proj)erty,  can  be  brought  only  in  the  district  where  the  land 
lies? 

If  the  defendant  be  served  with  process  in  the  district  where 
the  suit  is  brought,  neither  the  eleventh  st'ction  nor  any  other 
provision  in  the  act  of  congress  has  restrained  tlie  jurisdiction 
of  the  court  in  the  supposed  cases.  The  only  answer  to  the 
question  is  that  the  want  of  jurisdiction  is  the  result  of  certain 
general  principles  of  law  acting  upon  the  particular  subject. 

In  like  manner  the  jurisdiction  of  these  courts,  when  sitting 
in  admiralty  or  prize  cause,  is  limited  by  those  general  prin- 
ciples which  apply  to  courts  of  admiralty  in  England  and  the 
United  States  as  well  as  in  other  countries.  Though  bounded 
only  by  the  nature  of  the  causes  over  which  they  are  to  decide, 
and  not  in  any  respect  by  j)lace,  it  is  nevertheless  essential  to 
the  exercise  of  this  jurisdiction  by  any  particular  court  that  the 
person  or  thing  against  whom  or  which  the  court  proceeds 
should  be  within  the  local  jurisdiction  of  such  court.  Such  was 
the  jurisdiction  of  the  several  vice-admiralty  courts  of  Great 
Britain,  in  America  and  the  West  Indies,  until  the  statute  of 
the  forty-first  of  George  III.,  which,  whether  sitting  as  instance 
or  prize  courts,  were  confined  to  breaches  of  the  revenue  laws 
committed  within  their  local  jurisdictions,  and  to  cases  of  ves- 
sels, etc.,  brought  within  their  local  jurisdiction.  The  only 
exception  to  the  general  rule  above  stated,  applicable  to  the 
court  of  admiralty  in  prize  causes,  is  that  of  a  vessel  lying  in 
the  port  of  a  neutral  country,  most  unwillingly  assented  to  by 
Sir  W.  Scott  under  the  sanction  of  })recedents,  but  powerfully 
opposed  by  the  reasons  urged  against  it  by  that  distinguished 
judge.  But  even  in  that  case  it  was  never  pretended  that  the 
process  of  the  court  could  go  into  the  neutral  country  to  com- 
pel an  appearance  or  enforce  the  execution  of  a  sentence. 

But  secondly,  the  jurisdiction  of  these  courts  in  prize  causes 
is  limited  as  to  persons  by  the  express  |)rovisions  of  tlie  eleventh 
section  of  the  judiciary  law  before  referred  to 

Prize  proceeding  against  an  inhabitant  of  the  United  States 


PHOENIX  MUTUAL   LIFK  INS.  CO.  V.  BKJvTlIA  WULF,  KT  Al,.      121 

is  unqucslionably  a  civil  suit  ;  and  if  it  bc^  against  tlio  pt-rson 
instead  of  the  thing,  the  jurisdiction  is  ex(dnded,  unless  it  1)0 
instituted  in  the  court  of  the  district  whereof  he  is  an  iidiah- 
itant  or  is  found  at  the  lime  of  serving  the  process.  The 
manifest  [)olicy  of  the  judicial  system  of  the  United  states  was 
to  render  the  administration  of  justice  as  littl(>  oj)pressive  to 
suitoi's  and  others  as  possible  ;  and  it  corresponds  entirely  with 
that  construction  which  confines  the  process  of  the  courts 
within  the  limits  of  the  district  in  which  the  court  sits  and 
from  which  it  issued. 

In  the  exercise  of  a  jurisdiction  over  persons  not  inhabitants 
of  or  found  within  the  district  where  the  suit  is  brought,  there 
are  difficulties  which,  in  the  opinion  of  the  court,  nothing  but 
an  act  of  congress  can  remove.  In  what  manner,  for  instance, 
is  the  marshal  to  dis})Ose  of  the  person?  He  has  no  author- 
ity to  conduct  him  beyond  the  limits  of  his  district,  nor  to  de- 
liver him  over  to  the  marshal  of  an  adjoining  district  for  that 
purpose.  Can  he  commit  him  to  the  gaol  of  the  district  where 
the  arrest  was  made?  If  he  can,  the  case  would  present  a  very 
extraordinary  novelty  in  jurisprudence — that  of  a  defendant 
imprisoned  in  one  district  to  answer  to  a  suit  depending 
against  him  in  another,  how  great  soever  the  distance  of  the 
one  place  might  be  from  the  other. 

In  criminal  cases,  where  the  offender  is  arrested  in  one  dis- 
trict for  trial  in  another,  the  thirty-third  section  of  the  judicial 
law  has  provided,  not  only  for  the  removal  of  the  offender  and 
witnesses,  but  also  for  the  transmission  of  the  process  and 
recognizance  taken  in  the  case  to  the  proper  court.  In  like 
manner,  should  it  be  the  will  of  congress  to  vest  in  the  courts 
of  the  United  States  an  extra-territorial  jurisdiction  in  j>rize 
causes  over  persons  and  things  found  in  a  district  other  than 
that  from  which  the  process  issued,  it  would,  seem  to  be  proper, 
if  not  absolutely  necessary,  at  the  same  time  to  j)rescribe  the 
mode  of  executing  the  process. 

Ui)on  the  whole  we  are  of  opinion  that  the  petitioner  ought 
to  be  discharged. 

PHOENIX  MUTUAL  LIFE  INS.  CO.  v.  BERTHA  WULF,  ct  nl. 

(9  Bissel  285,  1880). 

Gresham,  J.  The  defendant,  Bertha  Wulf,  owned  certain 
real  estate  in  Indianapolis,  which  she  conveyed,  her  husband 
joining,  to  a  tliii'd   ])orson,  who  conve\'od   it   liack   to    her  hu.s- 


122  EQUITY    PLEADING. 

band,  Henry  Wulf.  The  husband,  the  wife  joining,  then 
mortgaged  the  same  property  to  the  Phtt'nix  Mutual  J^ife  In- 
surance Company  to  secure  a  loan.  The  mortgage  showed 
upon  its  face  that  it  was  to  secure  a  loan  to  the  husband.  The 
loan  was  not  paid  at  maturity,  and  afterward  the  mortgage 
was  foreclosed  in  this  court. 

Bertha  Wulf  subsequently  brought  suit  in  this  court  to  set 
aside  her  deed  to  the  third  party,  his  deed  to  her  husband, 
and  the  mortgage  of  herself  and  husband  to  the  insurance 
company  on  the  sole  ground  that  she  was  a  minor  when  she 
executed  those  instruments.  The  service  in  the  foreclosure 
suit  was  after  Bertha  Wulf  had  attained  her  majority,  and  the 
decree  against  her  was  by  default. 

The  marshal's  return  shows  that  the  subpa;na  in  the  fore- 
closure suit  was  properly  served  on  Henry  Wulf  in  compliance 
with  equity  rule  13.  As  to  the  wife,  the  return  reads  thus: 
"  I  served  Bertha  Wulf  by  leaving  a  copy  for  her  with  her 
husband."  Sometime  after  the  wife  commenced  her  suit,  as 
already  stated,  the  marshal  appeared  and  asked  leave  tQ 
amend  his  return,  so  as  to  show  that  he  had  served  the  sub- 
poena on  her  by  leaving  a  copy  for  her  with  her  husband,  at 
her  dwelling-house  or  usual  place  of  abode. 

The  defendant,  Henry  Wulf,  occupied  a  building  at  the 
corner  of  Virginia  avenue  and  Coburn  street,  in  Indianapolis, 
both  as  a  dwelling  and  a  family  grocery.  In  the  lower  story 
there  were  two  rooms,  the  main  one  being  occupied  as  a  gro- 
cery, and  the  back  smaller  one  for  storage  purposes.  These 
two  rooms  were  separated  l)y  a  hall  which  was  entered  by  a 
door  from  Coburn  street,  and  also  from  Virginia  avenue 
through  the  grocer^^  A  stairway  led  from  the  hall  to  the 
second  story,  where  the  family  dwelt,  eating  and  sleeping. 
The  hall  and  stairway  were  accessible  in  both  ways.  The 
deputy  marshal  found  the  husband  in  the  grocery  and  there 
served  the  subpoena  on  him  and  then  inquired  for  his  wife, 
and  was  informed  that  it  was  early  in  the  morning  and  she 
was  upstairs  in  bed  where  the  family  lived.  The  officer,  then, 
in  the  grocery,  handed  to  the  husband  a  copy  of  the  subpoena 
for  his  wife. 

Upon  these  facts  was  there  a  valid  service  on  the  wife  under 
the  13th  Equity  Rule,  which  declares  that  the  service  of  all 
subpoenas  shall  be  by  a  delivery  of  a  copy  thereof,  by  the 
officer  serving  the  same  to  the  defendant  personally,  or  by 


PHOENIX  Ml'TUAL  LIFE  INS.  CO.  V.  15KKTII  A  WULF,  ET  AL.       1  '2o 

leaving  a  copy  thereof  at  the  dwelhiig-liouse  or  usual  j»lace  of 
abode  of  each  defeiulant  with  some  adult  person  who  is  a 
member  or  resident  in  the  faniily? 

It  is  urged  by  counsel  that  the  odicer  handed  to  tlie  husb;iiid 
a  co{)y  of  the  subpoena  when  he  was  not  at  the  "dwelling- 
house  or  usual  place  of  abode" — that  the  groeery  room  was 
as  distinct  from  the  residence  in  tlie  upper  story,  as  if  the  two 
had  been  in  separate  buiUlings  miles  apart,  'i'hat  construc- 
tion of  the  I'ule  is  narrow  and  uni-easonable.  It  is  conceded 
that  if  the  oflficers  had  handed  the  copy  to  the  husband  in  the 
hall  the  service  would  have  been  good,  because  the  upper 
story  was  approached  only  tlu^ough  the  hall,  and  it  was  there- 
fore connected  with  the  dwelling.  There  were  but  two  ways 
of  ingress  to  the  residence  or  upper  story — one  from  Virginia 
avenue,  through  the  grocery,  and  the  other  through  the  door 
opening  from  Coburn  street.  The  family  passed  in  and  out 
as  best  suited  their  convenience.  A  copy  was  left  with  one 
who  understood  its  contents  and  was  likely  to  deliver  it  to  tlie 
person  for  whom  it  was  intended. 

The  case  of  Kibbe  v.  Benson,  17  Wallace,  625,  is  cited 
against  the  sufficienc}'  of  the  service.  That  was  an  action  of 
ejectment  in  the  circuit  court  of  the  United  States  for  the 
Northern  District  of  IlHnois,  which  had  adopted  the  statute  of 
that  state  relating  to  actions  of  ejectment.  After  judgment 
was  entered  for  the  plaintiff  by  default,  the  defendant  filed  a 
bill  in  equity  to  set  aside  the  judgment  on  the  ground  that  he 
had  no  notice  or  knowledge  of  the  pendency  of  the  suit  and 
for  fraud.  The  Illinois  statute  required  that  in  actions  of 
ejectment,  where  the  premises  were  actually  occu])ied,  the 
declaration  should  be  served  by  delivering  a  copy  to  the  de- 
fendant named  therein,  who  should  be  in  the  occupancy  of 
the  premises,  or  if  absent,  by  leaving  the.  same  with  a  tvliite 
person  of  the  family  of  the  age  of  ten  years  or  u|)wards  "  at 
the  dwelling-house  of  such  defendant." 

On  the  trial  of  the  equity  suit,  one  Turner  swore  that  when 
he  called  at  Benson's  house  to  serve  upon  him  the  declaration, 
he  was  informed  by  Benson's  father  that  Benson  was  not  at 
home,  and  that  while  the  father  was  standing  near  the  south- 
east corner  of  the  yard,  adjoining  the  dwelling-house,  and  in- 
side the  3'ard,  and  not  over  125  feet  from  the  dwelling-house, 
he  handed  him  a  copy  of  the  declaration,  explaining  its  nature, 
and   requesting  him   to   hand   it   to  his  son,  after  which   the 


124  EQUITY    PLEADING. 

father  threw  tlio  co[)y  upon  the  ground,  muttering  some  angry 
words. 

There  was  a  conflict  in  the  testimony,  but  the  circuit  court 
decided  that  even  if  the  copy  was  handed  to  the  father,  as  tes- 
tified to  by  Turner,  the  service  was  not  sufficient,  and  set 
aside  the  judgment  which  had  been  entered  by  default,  and 
the  decree  was  affirmed  on  appeah  In  deciding  the  case  the 
Supreme  Court  say  :  "It  is  not  unreasonable  to  require  that 
it  (copy  of  the  declaration)  should  be  delivered  on  the  steps,  or 
on  a  portico,  or  in  some  out-house  adjoining  to  or  immediately 
connected  with  the  family  mansion,  where,  if  dropped  or  left, 
it  would  likely  reach  its  destination.  A  distance  of  125  feet, 
and  in  a  corner  of  the  yard,  is  not  a  com])liance  with  the  re- 
quirement." 

Rule  13  should  receive  a  literal  construction.  It  does  not 
require  the  copy  of  the  subpoena  to  be  left  with  a  person  in 
the  dwelling-house  ;  it  is  sufficient  if  the  person  who  receives 
the  copy  is  at  the  dwelling-house.  The  rule  is  satisfied  by  a 
service  outside  the  dwelling-house  at  the  door,  just  as  well  as 
inside  the  house.  I  think  Bertha  Wulf  was  in  court  when 
the  decree  of  foreclosure  was  entered.  This  is  not  a  motion 
to  correct  the  pleadings,  judgment  or  process. 

Courts  have  the  power  to  permit  officers  to  amend  their  re- 
turns to  both  mesne  and  final  process,  and  the  power  is  exer- 
cised liberally  in  the  interest  of  justice,  especially  when  the 
rights  of  third  parties  are  not  to  be  affected  by  the  amend- 
ment. In  the  exercise  of  sound  discretion  they  have  allowed 
officers  to  amend  their  returns  according  to  the  real  facts  after 
the  lapse  of  several  years,  and  when  there  is  no  doubt  about 
the  facts,  such  amendments  have  been  allowed  after  the  offi- 
cer's term  has  expired. 

I  think  justice  requires  that  the  amendment  should  be 
allowed  in  this  case. 

GKACIE,  et  al.,  v.  PALMER,  et  al. 
(8  Wheaton  699,  1823. ) 

Mr.  Webster  moved  to  dismiss  the  writ  of  error  in  this 
case,  for  want  of  jurisdiction.  He  stated  that  the  phiintifts 
below,  Palmer  and  others,  were  described  to  be  aliens,  and 
subjects  of  the  King  of  Great  Britain,  and  the  defendants, 
Gracie  and  others,  to  be  citizens  of  the  State  of  New  York, 
and  the  suit  was  brought  in  the  circuit  court  of  Pennsylvania. 


I'AKSONS    V.     IK  (WARD.  1 '25 

It  did  not  api)ear  that  the  defendants  were  inhabitant.s  of,  or 
found  in  the  district  of  Pennsylvania  at  the  time  of  serving 
the  writ;  and  he  therefore  contended,  under  the  11th  section 
of  the  Judiciary  Act  of  1789  c.  20,  that  no  civil  suit  could  be 
brought  against  them  by  original  process  in  that  district. 

Mr.  Chief  Justice  Marshall  stated,  that  the  uniform  con- 
struction, under  the  clause  of  the  act  referred  to,  had  been, 
that  it  was  not  necessary  to  aver,  on  the  record,  that  the  de- 
fendant was  an  inhabitant  of  the  district  or  found  therein. 
That  it  was  sufficient  if  the  court  appeared  to  have  jurisdic- 
tion by  the  citizenship  or  alienage  of  the  parties.  The  ex- 
emption from  arrest  in  a  district  in  which  the  defendant  was 
not  an  inhabitant,  or  in  which  he  was  not  found  at  the  time 
of  serving  the  process,  was  the  privilege  of  the  defendant, 
which  he  might  waive  by  a  voluntary  appearance. 

That  if  the  process  was  returned  by  the  marshal  as  served 
upon  him  within  the  district,  it  was  sufficient ;  and  that  where 
the  defendant  voluntarily  appeared  in  the  court  below,  with- 
out taking  the  exception,  it  was  an  admission  of  the  service, 
and  a  waiver  of  any  further  inquiry  into  the  matter. 

Motion  denied. 

PARSONS  V.  HOWARD. 
(Circuit  Court  for  Louisiana  :  2  Woods,  1-7.     1873. ) 

Statement  of  Facts. — This  is  a  bill  in  equity  by  com- 
plainants, who  state  that  they,  defendants  and  certain  other 
persons  were  })artners  in  the  lottery  business,  and  one  of  their 
articles  of  agreement  was  that  if  any  associate  should  acquire 
any  lottery  privilege  it  should  be  transferred  to  the  company 
as  part  of  the  common  stock.  It  charged  that  defendants  had 
acquired  such  privileges  in  Louisiana  and  excluded  complain- 
ants from  participation.  The  prayer  was  for  an  injunction, 
sale,  etc.  Parsons  having  died,  a  bill  of  revivor  was  filed. 
There  was  a  demurrer  to  the  original  bill  and  a  plea  to  the 
bill  of  revivor.  Further  facts  appear  in  the  opinion  of  the 
court. 

Opinion  by  Ijradley,  J. 

The  plea  to  the  bill  of  revivoi'  in  this  case  is  good,  if  true, 
and  if  the  suit  proceeds  farther  the  comi)lainants  must  reply  to 
it,  and  proceed  to  proofs.  I  observe  that  the  only  allegation 
in  the  bill  of  revivor  is  that  the  com})lainants  therein  have 
obtained  letters  of  exccutorsliip  on  the  estate  of  Rculxii  Par- 


126  EQUITY    PLEADING. 

sons,  deceased,  without  specifying  any  last  will,  any  state  or 
place,  or  court,  in  which  the  letters  were  issued.  This  is  ex- 
tremely informal.  All  these  particulars  should  have  been 
stated,  so  tliat  the  court  could  see  that  the  com])lainants  were 
fully  entitled  to  be  substituted  in  the  i)lace  of  Parsons.  Let- 
ters testamentary,  issued  in  New  York,  have  no  efficacy  in 
Louisiana,  unless  the  laws  of  the  latter  state  make  provision 
to  that  effect. 

The  demurrer  to  the  original  bill  states,  as  causes  of  objec- 
tion, want  of  parties,  multifariousness,  immorality  of  the 
transactions  on  which  the  prayer  for  relief  is  founded,  and 
general  want  of  equity.  The  substantive  charge  of  the  bill  is 
that  the  defendants,  together  with  Zachariah  E.  Simmons  and 
John  A.  Morris,  are  carrying  on  a  lucrative  lottery  business 
in  New  Orleans,  and  in  the  state  of  Louisiana,  and  appropri- 
ating the  profits  to  their  own  use,  whilst  in  equity  the  com- 
plainants and  certain  other  persons  are  entitled  to  a  share  of. 
said  business,  of  which  the  defendants,  together  with  Simmons 
and  Morris,  unjustly  deprive  them;  and  the  relief  sought  is 
an  account  of  the  profits  of  the  said  business,  a  declaration 
that  the  defendants  are  trustees  for  the  complainants,  and  the 
other  parties  really  interested,  and  a  sale  of  the  whole  property 
and  business  and  division  of  the  proceeds. 

The  ground  on  which  this  claim  is  based  is  that  Murray, 
one  of  the  defendants,  and  Simmons  and  Morris,  were  for- 
merly associated  in  the  lottery  business  with  the  complainants 
and  other  persons,  jointly  as  partners  in  a  firm,  whose  style 
was  generally  C.  H.  Murray  &  Co.,  under  an  arrangement 
which  commenced  September  1,  1803,  to  last  for  ten  years,  by 
which  the  parties  to  the  arrangement,  having  transferred  all 
their  interest  in  the  lottery  business,  and  grants  to  trustees 
(Simmons,  Murray  and  Davis),  for  the  purpose  of  being  car- 
ried on  b}'  them  for  the  mutual  benefit  of  the  proprietors, 
agreed  to  do  the  same  with  any  other  lottery  grants,  or  inter- 
ests therein,  which  they  might  severally  acquire,  under  pen- 
alty of  forfeiting  the  interest  they  already  possessed  in  the 
joint  business — the  object  of  the  assignments  and  trust  being 
declared  to  be  the  avoiding  of  conflict  of  interest  between  the 
parties  and  the  advantages  of  a  consolidation  and  joint  con- 
trol of  the  whole  business.  The  complainants  were  not  orig- 
inally parties  to  this  arrangement ;  but  in  December,  1867, 
they  became  parties  thereto,  by  purchase,  with  others,  of  cer- 


PARSONS    V.    HoWAin).  1  "-'T 

tain  of  the  shares,  and  in  .laiuiary,  18GS,  they  l)ecanie  I'urtlier 
interested  by  consolidating  certain  lottery  interests  of  them- 
selves and  others  with  tlie  said  lottery' bnsiness  of  tlie  associ- 
ates. 

The  whole  concern  tiien  consisted  of  one  hundred  and  fif- 
teen shares,  of  which  the  complainants  owned  two  and  a  half 
shares. 

The  defendant  Howard  was  not  an  as.sociate,  but  was  agent 
of  the  concern  in  New  Orleans. 

The  gravamen  of  complaint  is  that  in  the  summer  of  1808, 
whilst  the  business  was  thus  carried  on  jointly,  the  defend- 
ants, Howard  and  Murray,  with  Zachariah  E.  Simmons,  John 
A.  ^lorris  and  other  parties  concerned  and  interested  in  the 
said  bu.siness,  procured  from  tiie  legislature  of  Louisiana  an 
exclusive  lottery  grant  in  the  shape  of  a  legislative  act,  under 
which  a  corporation  called  the  Louisiana  State  Lottery  Com- 
pany was  organized  by  them,  and  a  contract  made  with  that 
corporation  for  carrying  on  the  lottery  business  in  Louisiana, 
and  that  the  funds  of  the  joint  concern  of  C.  11.  Murray  & 
Co.  were  used  by  them  in  procuring  said  grant  and  establish- 
ing said  business,  and  that  by  this  contrivance  they  have 
mo)iopolized  the  lottery  business  in  that  state  and  excluded 
the  complainants  and  their  other  associates  from  all  partici- 
pation therein. 

This  is  the  business  which  the  complainants  claim  as  in 
equity  belonging  to  the  joint  concern  of  C.  H.  Murray  & 
Co.,  and  for  the  proceeds  of  which  they  seek  an  account  and 
settlement. 

The  bill  states  that  Morris,  Simmons,  Wm.  F.  Simmons, 
Wm.  C.  France,  Benj.  Wood  and  Henry  Cotton  are  not  made 
parties  because  they  are  citizens  of  the  same  state  with  the 
complainants.  Conceding,  as  1  am  inclined  to  do,  that  if  the 
facts  stated  in  the  bill  are  true,  the  claim  is  well  founded 
and  free  from  the  taint  of  immorality,  and  that  there  is  no 
ground  for  the  charge  of  multifariousness,  a  question  of  much 
gravity  still  remains  in  reference  to  the  alleged  want  of  proper 
parties. 

I  do  not  perceive  any  reason  for  making  the  Louisiana 
State  Lottery  Company  a  party.  Nothing  is  demanded  of  it, 
and  no  charges  of  misconduct  are  made  again.st  it.  It  is  no 
concern  of  the  cor})oration  that  its  stockholders  are  responsible 
to  third  i)arties   for  dividends  and  profits  received.     It  has 


128  EQUITY    PLEADING. 

nothing  to  do  with  their  controversies,  unless  in  some  way 
involved  therein  as  a  corporate  body.  Much  less  is  the  cor- 
poration concerned  in  the  responsibility  under  which  its  con- 
tractors or  agents  may  have  brought  themselves  in  reference 
to  third  parties. 

As  to  yimmons  and  Morris,  regarded  as  jointly  guilty  with 
the  defendants,  it  is  sufficient  to  sa}'  that  a  breach  of  trust  or 
an  act  of  bad  faith,  like  a  tort  at  common  law,  renders  the 
parties,  severally  as  well  as  jointly,  liable  as  tort-feasors  or 
breakers  of  trust ;  therefore  they  are  not  necessary  parties. 

There  is  more  force  iu  the  objection  that  the  other  associates 
and  co-partners  of  the  complainants,  interested  in  the  same 
manner  as  they,  are  not  made  parties.  If  this  were  the  case 
of  an  ordinary  bill  for  the  settlement  of  partnership  accounts 
it  is  clear  that  all  the  partners  would  be  necessary  parties,  be- 
cause each  has  not  only  an  interest  in  the  general  balance 
according  to  his  share  in  the  concern,  but  has  an  equitable 
lien  for  all  advances  made  by  him  in  its  behalf,  and  is  liable 
in  equity  as  a  partner  for  the  advances  made  by  the  others ; 
so  that  no  settlement  could  be  made  without  the  actual  or 
constructive  presence  of  all.  Hence  all  must  be  made  parties  ; 
and  if  any  of  them  are  non-residents  process  must  nevertheless 
be  issued  ;  and  in  the  old  English  practice  certain  forms  had 
to  be  observed  (terminating  in  the  commission  of  rebellion) 
before  the  case  could  be  heard.     See  Daniell's  Ch.  Pr.,  1253. 

In  this  country  constructive  service  by  publication  is  gen- 
erally prescribed  and  allowed  ;  but  as  it  has  been  held  that 
the  federal  courts  have  no  means  of  effecting  constructive  ser- 
vice, such  cases  cannot  be  brought  in  them  unless  the  non- 
resident defendants  voluntarily  appear  ;  and  not  even  then  if 
they  are  citizens  of  the  same  state  with  the  complainants. 
The  present  case,  it  is  true,  is  not  that  of  the  settlement  of  a 
partnership  concern.  The.  bill  seeks  to  make  the  defendants 
account  for  property  in  their  hands,  alleged  to  be  partnership 
projDcrty,  and  make  them  trustees  for  the  copartnership  in  re- 
spect thereof  The  suit  is  brought,  therefore,  for  the  equal 
benefit  of  all  the  copartners  who  are  not  implicated  in  the 
transactions  complained  of  The  fact  that  some  of  the  defend- 
ants are  copartners  does  not  divest  it  of  the  character  of  a 
joint  partnership  demand.  If  the  firm  had  held  a  mortgage 
on  the  lands  of  some  of  the  partners  for  money  lent,  the  com- 
plainants could    as  well    have  filed   a  bill    to  foreclose  that 


PARSONS    V.    HOWAKI).  lliO 

mortgage,  without  making  the  otlicr  {larliicrs  ]);irti('s,  as  to 
file  this  bill.  They  do  not  even  allege  that  ihrv  lile  it  on  be- 
half of  themselves  and  the  other  partners,  whieb,  perha|).s, 
they  might  do  if  the  number  were  so  great  as  to  render  it  im- 
praeticable  that  all  should  be  joined.  It  is  simply  the  case 
of  one  or  two  partners  suing  alone  for  a  partnership  demand 
without  joining  the  other  }»artners.  To  this  the  defendants 
have  a  right  to  object ;  for  if  these  complainants  can  main- 
tain this  suit,  the  other  partners  similarly  interested  might 
maintain  similar  suits  in  other  courts  for  the  recovery  of  the 
same  demand.  The  excuse  given,  that  to  make  the  othei's 
parties  Avould  oust  the  court  of  jurisdiction,  is  not  sufficient. 
That  consequence  cannot  make  it  regular  to  proceed  without 
them.  That  only  proves  that  this  court  is  not  the  proper 
tribunal  to  settle  the  controversy.  If  it  be  once  settled  that 
the  other  partners  are  not  merely  proper  but  necessary  })arties, 
the  complainants  cannot  set  up  the  limited  jurisdiction  of  the 
court  for  not  making  them  such. 

If,  like  legatees  and  distributees  of  a  deceased  person's  es- 
tate, they  were  entitled  to  an  aliquot  share  of  the  moneys 
sought  to  be  recovered,  irrespective  of  the  shares  and  accounts 
of  their  co-legatees  or  co-successors  ;  or,  in  the  language  of  the 
common  law.  if  they  were  tenants  in  common  as  contradistin- 
guished from  joint  tenants,  or  if  t-heir  titles  were  both  joint 
and  several,  they  might  with  more  reason  be  entitled  to  sue 
alone  for  their  aliquot  share,  although  an  accounting  might 
be  necessary  to  ascertain  the  amount  due. 

But  the  moneys  sought  to  be  recovered  in  this  case  are  con- 
fessedly partnership  moneys,  and  the  complainants  pray  that 
they  may  be  accounted  for  as  such,  and  paid  into  the  common 
partnership  fund.  In  this  state  of  things  it  is  evident  that  all 
the  other  partners  are  equally  interested  in  the  suit  with  the 
complainants  themselves,  and  are  virtually  parties  to  it, 
whether  made  such  or  not  ;  and  as  no  sufficient  excuse  is 
alleged  for  not  joining  therein,  the  bill  is  necessarily  de- 
fective. 

The  case  is  essentially  different  from  that  of  a  suit  brought 
ac/atnst  partners.  In  that  case,  as  all  are  jointly  liable  in 
solido,  or  according  to  the  civil  law,  each  is  liable  oidy  for  his 
virile  share,  a  suit  could  probably  be  sustained  against  some 
of  the  partners,  though  tlie  others  could  not  be  found  within 
this  jurisdiction.  The  demurrer  must  be  allowed,  with  costs. 
9 


loO  EQUITY    PLEADING. 

LOWENSTEIN  v.  GLIDEWELL. 

(Circuit  Court  for  ArkaiiHas,  5  Dillon,  325-329  ;  S.  C,  6  Eep'r,  454;  7  Cent.  L. 

J.,   1()7.     1878.) 

Statement  OF  Facts. — Plaintiff  filed  bill  to  foreclose  deed 
of  trust.  Partee  and  wife  were  made  defendants  upon  allef^a- 
tion  of  interest.  Partee  and  wife  answered,  and  also  filed 
cross-bills  praying  cancellation  of  deed  of  trust,  etc.  No  i)r()- 
cess  was  issued  on  cross-bill,  and  plaintiffs  in  orginal  bill  did 
not  enter  appearance.  Plaintiff  in  original  bill  moved  to  dis- 
continue. Partee  and  AS'ife  objected  and  moved  for  decree  ^/ro 
confcHHo  on  cross-bill. 

Opinion  by  Caldwell,  J. 

The  plaintiffs  in  the  original  bill  have  the  right,  as  a  mat- 
ter of  course,  at  any  time  before  decree,  to  dismiss  their  bill  at 
their  own  costs.  1  Barb.  Ch.  Prac,  225,  228  ;  1  Daniell's  Cli. 
Prac,  792.  The  cause  is  not  at  issue  on  the  original  bill — 
no  rci>lication  to  the  answer  having  been  filed  —  and  the  de- 
fendants in  that  bill,  under  rule  6G,  might  liave  obtained  an 
order,  as  of  course,  for  a  dismissal  of  the  suit  for  this  reason. 

The  motion  of  plaintiffs  to  dismiss  their  bill  is  granted,  and 
the  same  will  be  dismissed  at  their  costs.  The  motion  of 
plaintiffs  in  the  cross-bill  for  a  decree  pro  confesso  thereon 
against  the  defendants  therein  named  is  denied.  If  the  de- 
fendants in  the  cross-bill  bad  been  served  with  })rocess,  or  had 
voluntarily  entered  their  a})pearance  in  the  cross-bill,  the 
plaintiff's  therein  would  have  been  entitled  to  a  decree  7)ro  con- 
fesso  after  the  lapse  of  the  time  allowed  defendants  by  the  rules 
to  answer. 

The  bill  and  cross-bill  in  equity  do  not  necessarily  consti- 
tute one  suit,  and,  according  to  the  established  practice  in 
equity,  the  service  of  a  subpoena  on  the  defendants  in  the 
cross-bill,  although  the_y  are  parties  in  tlie  original  bill,  and 
in  court  for  all  the  purposes  of  the  original  bill,  is  necessary 
to  bring  them  into  court  on  the  cross-bill,  unless  they  volun- 
tarily enter  their  appearance  thereto,  wliieli  is  the  usual  prac- 
tice. And  the  general  chancery  rule  is  that  service  of  the 
subpcena  in  chancery  to  answer  a  cross-bill  cainiot  be  made 
upon  the  solicitor  of  the  plaintiff  in  the  oi'iginal  bill.  1  Iloif. 
Ch.  Prac,  355,  and  note  4. 

In  the  chancery  practice  of  the  circuit  courts  of  the  United 
States  there  are  two  exceptions  to  this  rule — (1)  in  case  of  in- 
junctions to  stay  proceedings  at  law,  and  (2)  in  cross-suits  in 


LOWENSTEIN    V.    GLIDKWELL.  lol 

equity  where  the  plaintiff  at  law  in  the  first  and  the  jilaintiir 
in  equity  in  the  second  case  reside  heyond  the  jurisdietion  of 
the  court.  In  these  cases,  to  })revent  a  failure  of  justice,  the 
court  will  order  service  of  the  suhpoena  to  be  made  upon  the 
attorney  of  the  ])laintiff  in  the  suit  at  law  in  the  one  case,  and 
upon  his  solicitor  in  the  suit  in  equity  in  the  other.  Eckert 
V.  Bauert,  4  Wash.,  370  ;  Ward  v.  iSebring,  id.,  472  ;  Dunn  v. 
Clark,  8  Pet.,  1.  And  for  application  of  analogous  i)rinciples 
to  parties  to  cross-bills,  see  Schenck  v.  Peay,  1  Woolw.,  175. 

It  not  unfrequently  occurs  that  the  facts  constituting  de- 
fendant's defenses  to  an  action  or  judgment  at  law  are  of  a 
character  solely  cognizable  in  equity,  and  in  suits  in  equity  it 
often  happens  that;  the  defendant  can  only  avail  himself  fully 
and  successfully  of  his  defense  to  the  action  through  the 
medium  of  a  cross-bill.  In  suits  in  these  courts  the  plaintiff 
is  usuall}^  a  citizen  of  another  state,  and  hence  beyond  the 
jurisdiction  of  the  court,  and  in  such  cases  defendants  who 
desire  to  enjoin  proceedings  at  law,  and  defendants  in  equity 
cases  who  desire  to  defend  by  means  of  a  cross-bill,  would,  but 
for  this  rule  of  practice,  be  practically  cut  off  from  their  de- 
fenses by  reason  of  their  inability  to  make  service  on  the 
plaintiff  in  the  action.  It  would  be  in  the  highest  degree  un- 
just and  oppressive  to  permit  a  non-resident  plaintiff  to  invoke 
the  jurisdiction  of  the  court  in  his  f\ivor,  and  obtain  and 
retain,  as  the  fruits  of  that  jurisdiction,  a  judgment  or  decree 
to  which  he  was  not  in  equity  entitled  by  remaining  beyond  the 
jurisdiction  of  the  court  whose  jurisdiction  on  the  very  subject- 
matter,  and  against  the  very  party,  he  had  himself  fir.'^t  in- 
voked. The  reason  of  the  rule  would  seem  to  limit  it  in 
equity  cases  to  cross-bills  either  wholly  or  partially  defensive 
in  their  character,  and  to  deny  its  application  to  cross-bills  set- 
ting u\)  facts  not  alleged  in  the  original  bill,  and  which  new 
facts,  though  they  relate  as  they  must  to  the  subject-matter  of 
the  original  bill,  are  made  the  basis  of  the  afhrmative  relief 
asked.  The  cross-bill  in  this  case  is  of  this  latter  character, 
and  without  deciding  tiiat  this  fact  alone  would  preclude  the 
court  from  directing  service  of  the  subpoena  on  the  solicitors 
of  the  plaintiffs  in  the  original  bill,  such  an  order  will  not  be 
made  after  plaintiffs  have  filed  their  motion  to  dismiss  their 
bill — a  motion  grantable  as  of  cour.se. 

Whether  the  dismissal  of  the  original  bill  carries  with  it 
the  cross-bill  depends  on  tlie  character  of  the  lalUi'.      If  the 


132  EQUITY    PLEADING. 

cross-bill  sets  up  matters  purely  defensive  to  the  original  bill 
and  prays  for  no  affirmative  relief,  the  dismissal  of  the  latter 
necessarily  disposes  of  the  former.  But  where  the  cross-bill 
sets  up,  as  it  may,  additional  facts  not  alleged  in  the  original 
bill  relating  to  the  subject-matter,  and  prays  for  affirmative 
relief  against  the  plaintiffs  in  the  original  bill  in  the  case  thus 
made,  the  dismissal  of  the  original  bill  does  not  dispose  of  the 
cross-bill,  but  it  remains  for  disposition  in  the  same  manner  as 
if  it  had  been  filed  as  an  original  bill.  Warrell  v.  Wade,  17 
la.,  96  ;  2  Daniel's  Ch.  Prac,  1556. 

The  cross-bill  in  this  case  is  of  this  character  and  it  will  re- 
main on  the  docket,  and  the  plaintiffs  therein  can  take  such 
action  in  relation  thereto  as  they  may  be  advised,  but  no  steps 
can  be  taken  in  the  case  until  defendants  are  brought  into 
court. 

Ordered  a  ccording  ly . 


CHAPTER  V. 

DEFAULT    AND    DECREE    PKO    CONFESSO. 

llule  IS. 

It  shall  be  the  duty  of  the  defendant,  unless  the  time  shall 
be  otherwise  enlarged,  for  cause  shown,  by  a  judge  of  the 
court,  upon  motion  for  that  purpose,  to  file  his  plea,  demurrer, 
or  answer  to  the  bill,  in  the  clerk's  office,  on  the  rule-day  next 
succeeding  that  of  entering  his  appearance.  In  default  thereof, 
the  plaintiff  may,  at  his  election,  enter  an  order  (as  of  course) 
in  the  order-book,  that  the  bill  be  taken  pro  confc.^so ;  and 
thereupon  the  cause  shall  be  proceeded  in  ex  parte,  and  the 
matter  of  the  bill  may  be  decreed  by  the  court  at  any  time 
after  the  expiration  of  thirty  days  from  and  after  the  entry  of 
said  order,  if  the  same  can  be  done  without  an  answer,  and  is 
proper  to  be  decreed  ;  or  the  plaintiff,  if  he  requiies  any  dis- 
covery or  answer  to  enable  him  to  obtain  a  pi'oper  decree, 
shall  be  entitled  to  process  of  attachment  against  the  defend- 
ant to  compel  an  answer,  and  the  defendant  shall  not,  when 
arrested  upon  such  process,  be  discharged  therefrom,  unless 
upon  filing  his  answer,  or  otherwise  complying  with  such 
order  as  the  court  or  a  judge  thereof  may  direct  as  to  pleading 
to  or  fully  answering  the  bill,  within  a  period  to  be  fixed  ])y 
the  court  or  judge,  and  undertaking  to  si)eed  the  cause. 

liHle  10. 

When  the  bill  is  taken  pro  conj'csso  ilic  court  may  proceed  to 
a  decree  at  any  time  after  the  ex])iration  of  thirty  days  from 
and  after  the  entry  of  the  order  to  take  \\\v  bill  pro  confesso, 
and  such  decree  rendered  shall  be  deemed  absolute,  unless  the 
court  shall,  at  the  same  term,  set  asid(>  the  same,  or  enlarge 

(133) 


134  EQUITY    PLEADING. 

the  time  for  filing  the  answer,  upon  cause  sliown  upon  motion 
and  affidavit  of  the  defendant.  And  no  such  motion  shall  be 
granted,  unless  upon  tlie  payment  of  the  cost  of  the  plaintiff 
in  the  suit  up  to  that  time,  or  such  part  thereof  as  tlie  court 
shall  deem  reasonable,  and  unless  the  defendant  shall  under- 
take to  file  his  answer  within  such  time  as  the  court  shall 
direct,  and  submit  to  such  other  terms  as  the  court  sliall  dii'cct 
for  the  purpose  of  speeding  of  the  cause. 

MAR  YE  V.  STROUSE. 

( Circuit  Court  of  Nevada.  6  Sawyer,  204-220.      1880. ) 

Opinion  by  Hillyer,  J. 

The  motion  for  a  new  trial  came  up  first  regularly  for  hear- 
ing on  the  first  Monday  of  March,  and  at  that  time  the 
plaintiff  appeared,  and,  without  any  objection  to  the  notice, 
consented  to  a  continuance.  Admitting,  what  is  doubtless 
correct,  that  the  notice  was  insufficient,  I  still  am  of  the 
opinion  that  this  general  appearance  on  the  part  of  plaintiff 
must  be  considered  a  waiver  of  the  want  of  due  notice.  In  its 
nature  it  resembles  the  summons  issued  at  the  commencement 
of  the  suit,  and  a  general  appearance  is  a  waiver  of  all  irregu- 
larities in  the  service  of  a  summons. 

[Note. — Only  so  much  of  this  case  is  reported  as  relates  to  Equity  Pleading 
and  Practice.] 

O'HARA  et  al.  v.  MacCONNELL  et  al..  Assignees 
(93  U.S.,  150.     187(3.) 

Appeal  from  the  circuit  court  of  the  United  States  for  the 
Western  District  of  Pennsylvania. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

Michael  O'Hara  was  adjudged  a  bankrupt  December  9, 
1867,  and  the  appellee  duly  appointed  assignees,  to  whom  an 
assignment  of  his  effects  was  made  in  due  form.  As  such 
assignees  they  filed  in  the  circuit  court  for  the  Western  Dis- 
trict of  Pennsylvania  the  bill  in  chancery  on  which  the  decree 
was  rendered  from  which  the  present  appeal  is  taken.  The 
bill  alleges  that  a  conveyance  of  certain  real  estate  made  by 
said  O'Hara  and  his  wife  Frances,  on  the  tenth  day  of  July, 
1866,  to  William  Harrison  and  G.  L.  B.  Fetterman,  in  trust 


o'lIAKA  ET   AL.   V.   MAC  L'UXXELl.   KT   A  I,..    ASS  K  ;N  !•  I  S.  1  ll") 

for  the  use  of  the  wife,  Avns  a  fraiul  upon  (.'ivditui's,  niul  [Tays 
that  the  deed  be  dechued  void,  and  that  O'llara,  his  wife,  and 
Bail",  her  guardiau,  bt^  decreed  to  convey  the  hnid  to  com- 
})huuants,  that  they  may  sell  it  for  the  benefit  of  O'Hara's 
creditors,  free  from  the  embarassnient  created  by  said  deed  of 
trust. 

The  bill  also  alleges  that  Mrs.  O'llara  is  a  miuoi\  and  that 
A.  jM.  Barr  is  her  legal  guardian. 

A  subpania  was  issued  on  the  fifth  day  of  April,  18(55),  and 
served  on  the  seventh  on  O'Hara,  for  himself  and  wife,  and  on 
Ban*;  and  on  the  seventh  day  of  May  following,  without 
appearance  and  without  answer  by  any  defendant,  the  bill  was 
amended,  was  taken  as  confessed,  and  a  final  decree  rendered. 
This  decree  enjoined  the  defendants  from  setting  up  any  claim 
to  the  land,  and  ordered  all  of  them  to  convey  and  release  the 
same  to  assignees;  and  in  default  of  such  conveyance  \vithin 
thirty  days,  Henr}'  Sproul  was  a])pointed  commissioner  to  do 
it  in  tlieir  name.  A  copy  of  this  decree  was  served  on  the 
defendants  May  10th  ;  on  the  14th  of  June  the  order  was 
complied  with  by  a  deed  made  by  O'llara,  his  wife  and  Barr, 
which  on  its  face  pur{)orts  to  be  in  execution  of  the  order,  and 
for  the  consideration  of  one  dollar.  It  will  thus  be  seen  that 
within  less  than  five  weeks  from  the  filing  of  the  bill,  and 
without  any  actual  service  of  the  writ  or  other  notice  on  her, 
a  decree  was  entered  against  a  woman  who  was  both  a  minor 
and  a  feme  covert,  without  the  appointment  of  a  guai-dian 
ad  litem,  without  any  appearance  by  her  or  for  her,  dejjriving 
her  of  fourteen  acres  of  land  now^  within  the  limits  of  the  city 
of  Pittsburg.     It  is  from  this  decree  that  she  appeals. 

By  the  thirteenth  rule  of  ])ractice  of  the  courts  of  equity  of 
the  United  States,  as  it  stood  when  the  subpama  in  this  case 
was  served,  a  delivery  of  a  copy  to  the  husband  was  good, 
where  husband  and  wife  w^ere  sued  together  ;  but  the  rule  was 
amended  in  this  court  in  1874,  so  as  to  require  a  ])ersonal 
service  on  each  defendant,  or  by  leaving  a  copy  for  each  at  his 
or  her  u.sual  place  of  abode,  with  some  adult  member  of  the 
family.  The  service  in  the  present  case  would  not  now  be 
good,  though  it  must  be  held  to  have  been  so  at  the  time  it 
was  made. 

It  would  be  very  strange  if  a  decree  obtained  under  such 
circumstances  could  stand  the  test  of  a  critical  examination. 
Wq  ;:re  of  the  opinion  that  there  are  several  errors  suflicient 
to  ju.stify  its  reversal. 


136  EQUITY    PLEADING. 

1.  It  was  tlie.dut}^  of  the  court,  where  the  bill  on  its  face 
showed  that  the  party  whose  interest  was  the  principal  one  to 
be  affected  by  the  decree  was  both  a  minor  and  a  feme  covert, 
and  that  no  one  appeared  for  her  in  any  manner  to  protect  her 
interests,  to  have  appointed  a  guardian  ad  litem  for  that  pur- 
pose. If  neither  her  husband  nor  he  who  is  styled  her  guar- 
dian in  the  bill  appeared  to  defend  her  interest,  it  was  the 
more  imperative  that  the  court  should  have  appointed  some 
one  to  do  it.  There  is  no  evidence  in  the  record  except  the 
statement  in  the  bill  that  Dr.  Barr  was  her  guardian.  If  he 
was  not,  then  tliere  was  no  one  served  with  notice  whose  legal 
duty  it  was  to  defend  her.  If  he  was  her  guardian  there  is 
no  evidence  of  the  precise  nature  of  his  duties  or  power,  as 
there  are  several  classes  of  guardians.  As  to  the  particular 
property  now  in  contest,  she  had  a  trustee,  in  whom  the  title 
was  vested  for  her  use,  and  whose  duty  it  would  have  been  to 
protect  her  interest  in  it ;  but,  strangely  enough,  he  was  not 
made  a  party.  It  was  therefore  error  in  the  court  to  proceed 
to  a  decree  without  appointing  a  guardian  ad  litem.  1 
Daniell's  Ch.  Pr.,  100,  c.  4,  sec.  9  ;  Coughlin's  Heirs  v.  Brent, 
1  McLean,  175  ;  Lessee  of  Nelson  v.  Moore,  3,  id.,  321. 

2.  If  Mrs.  O'Hara  had  been  under  no  disability,  it  was 
error  to  have  entered  a  final  decree  for  want  of  appearance  on 
the  return  day  of  the  writ,  or  during  that  term. 

"According  to  the  practice  of  the  English  chancery  court," 
says  Mr.  Justice  Washington,  in  Pendleton  v.  Evans'  Ex'r.,  4 
Wash.  C.  C,  337,  "  a  bill  cannot  be  taken  j^ro  confesso  after  service 
of  subpoena,  and  even  after  appearance,  until  all  the  processes 
of  contempt  to  sequestration  have  been  exhausted  ;  after  which 
the  bill  is  taken  2'>ro  co)}fesso,  and  a  decree  passes  which  is  abso- 
lute in  the  fii'st  instance."  He  then  comments  on  the  prac- 
tice of  the  New  York  chancery  court,  which,  instead  of  a  pro- 
ceeding in  contempt,  required  a  rule  to  answer  to  be  served  on 
the  defendant,  and  if  this  was  not  obeyed  the  bill  might  be 
then  taken  jrro  confesso.  He  then  adds  :  "  The  principle  which 
governs  the  practice  in  both  these  courts  is,  that  the  defendant 
shall  not  be  taken  by  surprise,  but  shall  have  sufficient  warn- 
ing before  a  decree  is  entered  against  him  by  default." 

He  then  states  the  rules  adojjted  by  the  supreme  court  for 
the  federal  courts,  as  follows:  "If  the  answer,  the  subpoena 
being  returned  executed,  be  not  filed  within  three  months 
after  the  day  of  appearance  and  bill  filed,  then   defendant  is 


o'lIARA    liT  AL.   V.    M AC  CONNKLL   KT  AL.,   ASSIGNKKS.  137 

to  be  ruled  to  answer,  and,  failing  to  do  so,  the  bill  may  be 
taken  for  confessed,  and  the  matter  thereof  decreed  immeili- 
ately  ;  but  this  decree  is  only  nisi,  to  be  made  absolute  at  the 
term  succeeding  that  to  which  service  of  a  coj)y  of  the  decree 
shall  be  returned  executed,  uidess  cause  to  the  contrary  bo 
shown." 

And  in  the  case  of  Read  v.  Consequa,  4  Wash.  C  C.  180. 
where  a  bill  on  which  an  injunction  had  been  allowed  had 
remained  unanswered,  and  without  appearance  of  defendant, 
who  had  been  duly  served  five  years  before,  he  refused  to  grant 
an  order  taking  the  bill  pro  covfcsw  because  it  would  be  irreg- 
ular. 

What  a  contra.st  to  the  speed  with  which  the  decree  was 
entered  in  the  case  before  us. 

Rules  18  and  19  of  the  equity  practice  as  now  exi.sting  have 
modified  those  which  are  mentioned  by  Judge  Washington, 
and,  unless  the  defendant  demur,  jdead  or  answer,  on  or  before 
the  rule  day  next  succeeding  his  appearance,  the  plaintiff  may 
enter  an  order  in  the  order  book  that  the  bill  be  taken  pro 
confesso,  and  the  matter  thereof  decreed  at  the  next  succeeding 
term.  But  in  the  case  before  us  the  final  decree  was  entered 
on  the  day  fixed  for  appearance,  or,  at  most,  at  the  same  term. 

The  standing  rule  now  requires  defendant  to  plead  by  the 
next  rule  day  after  appearance,  which  is  the  same  as  if  a 
special  rule  were  taken  on  him  to  do  so. 

It  is  therefore  clear  that  final  decree  could  not  be  made 
even  under  the  })resent  rules,  until  the  term  of  court  next  suc- 
ceeding the  day  of  default. 

The  remarks  of  Mr.  Justice  Washington  show  that  these 
rules  are  not  merely  technical  and  arbitrary,  but  are  made  to 
prevent  a  defendant  from  losing  his  rights  by  surprise. 

3.  The  legal  title  to  the  pro{)erty  in  question  was  held  by 
Fetterman,  in  trust  for  Mrs.  O'Hara.  The  trust  was  not  a 
naked  or  dry  trust;  for  he  was  empowered  with  her  consent 
to  sell  it,  and  rcinve-st  the  |)roceeds  on  the  same  trusts,  or  to 
mortgage  it,  and  with  the  money  so  raised  purchase  other  real 
estate. 

How  the  decree  can  clear  the  property  of  this  trust  witliout 
having  the  trustee  before  the  court  is  difficult  to  see.  This 
was  the  object  of  the  suit ;  but  how  can  it  be  made  effectual 
for  tliat  pnr|.)ose  in  the  absence  of  the  person  in  whom  the  title 
is  vested?      W'e  think,  tlutl  in  a  <-;isi>  like  this,  where  a  woman 


138  EQUITY    PLEADING. 

under  the  double  disability  of  coverture  and  infancy,  has  a 
trustee  in  whom  the  title  of  the  controvei'sy  is  vested  for  her 
use,  the  court  should  luive  I'cfuscd  a  decree  until  he  was  made 
a  |)arty. 

It  is  said,  that,  after  making  the  deed  that  the  court  ordered, 
the  appellant  is  bound  by  it,  and  cannot  now  prosecute  this 
aj^peal.  The  principle  is  unsound.  The  deed  recites  on  its 
face  that  it  is  made  under  the  order  of  the  court.  The  parties 
must  have  either  obeyed  the  order  of  the  court,  or  taken  ap- 
peal and  given  a  supersedeas  liond  in  a  sum  so  large  that  they 
were  probably  unable  to  do  it.  "  In  no  instance  within  our 
knowledge,"  says  the  court,  in  Erwin  v.  Lowry,  7  How.  184, 
"  has  an  appeal  or  writ  of  error  been  dismissed  on  the  assump- 
tion that  a  release  of  errors  was  implied  from  the  fact  that 
money  or  property  had  changed  hands  by  force  of  the  judg- 
ment or  decree." 

If  the  judgment  is  reversed,  it  is  the  duty  of  the  court  to 
restore  the  parties  to  their  rights.  That  was  a  case  where 
the  appellant  received  the  money  which  by  the  decree  he  re- 
covered of  the  appellant,  and  is,  therefoi'e,  a  stronger  case  than 
the  present,  as  his  action  would  seem  to  ratify  the  decree. 

About  three  years  after  this  decree,  appellants  filed  a  peti- 
tion in  the  Circuit  Court  in  the  nature  of  a  bill  of  review  to 
set  it  aside.  To  this  petition  the  appellees  filed  an  answer,  in 
which,  among  other  matters,  they  set  out  a  copy  of  another 
deed  made  by  OTIara  and  wife  the  day  after  (as  they  allege) 
Mrs.  O'Hara  became  of  age,  and  they  rely  on  that  deed  here 
as  a  bar  to  the  appeal. 

It  is  sufficient  now  to  say,  as  to  that  deed,  that  it  is  long 
subsequent  to  the  decree,  and  apart  from  it.  Its  validity  and 
force  must  stand  or  fall  on  its  ow^i  merits,  wherever  and 
whenever  they  may  be  tried,  in  any  issue  made  on  them.  It 
has  nothing  to  do  with  the  appeal  which  regards  the  errors  of 
the  decree,  and  which  the  appellant  has  a  right  to  have  re- 
versed. When  this  is  done,  and  slie  is  placed  where  she 
ought  to  be  in  that  regard,  the  effect  of  the  deed  now  under 
consideration  may,  perhaps,  be  decided  on  a  supplemental 
bill,  setting  it  up  as  a  matter  occurring  since  the  commence- 
ment of  the  suit,  or  by  the  appellees  dismissing  their  present 
suit  and  relying  on  the  title  acquired  by  that  deed. 

Another  equally  conclusive  reason  why  we  cannot  consider 
any  other  matters  arising  under  the  petition   and  answer  is, 


o'hara  et  al.  v.  macconnkll  kt  al.,  assignees.       130 

that  there  is  no  order,  decree  or  other  action  of  the  court  on 
tliein.  The  record  closes  with  the  bill  and  answer,  the  latter 
filed  Mav  2o,  1S74.  and  the  present  appeal  allowed  August  4, 
1874. 

We,  therefore,  take  no  notice  of  this  subsequent  pleading, 
but  reverse  the  original  decree,  and  remand  the  case  to  the 
Circuit  Court  for  such  further  proceeding  as  to  right  and  jus- 
tice may  appertain. 

Decree  reversed. 


CHAPTER  VI. 

APPEARANCE    AND    PROCEEDINGS     ON     BEHALF    OP    DEFENDANT. 

Rule  17. 

The  appearance-day  of  the  defendant  shall  be  the  rule-day 
to  which  the  subpoena  is  made  returnable,  provided  he  has 
been  served  with  the  process  twenty  days  before  that  day  ; 
otherwise  his  appearance-day  shall  be  the  next  rule-day  suc- 
ceeding the  rule-day  when  the  process  is  returnable. 

The  appearance  of  the  defendant,  eitlier  personally  or  by 
his  solicitor,  shall  be  entered  in  the  order-book  on  the  day 
thereof  by  the  clerk. 

Rule  18. 

It  shall  be  the  duty  of  the  defendant,  unless  the  time  shall 
be  otherwise  enlarged,  for  cause  shown,  by  a  judge  of  the 
court,  upon  motion  for  that  pur{)ose,  to  file  his  plea,  demurrer, 
or  answer  to  tlie  bill,  in  the  clerk's  office,  on  the  rule-day  next 
succeeding  that  of  entering  his  appearance.  In  default 
thereof,  the  pluintitf  ma}^  at  his  election,  enter  an  order  (as  of 
course)  in  the  order-book,  that  the  bill  be  taken  jpro  confesso; 
and  thereupon  the  cause  shall  be  proceeded  in  ex  parte,  and 
the  matter  of  the  bill  may  be  decreed  by  the  court  at  any 
time  after  the  expiration  of  thirty  days  from  and  after  the 
entry  of  said  order,  if  the  same  can  be  done  without  an 
answer,  and  is  proper  to  be  decreed  ;  or  the  plaintifif',  if  he  re- 
quires any  discovery  or  answer  to  enable  him  to  obtain  a 
proper  decree,  shall  be  entitled  to  {)rocess  of  attachment 
against  the  defendant  to  compel  an  answer,  and  the  defendant 
shall   not,   when  arrested   upon   such   process,  be   discharged 

(140) 


EQUITY    PLKADINO.  141 

therefrom,  unless  ui)on  lilini;-  his  aiiswei",  or  otherwise  com- 
plying with  such  order  as  the  court  or  a  judge  thereof  m-.iy 
direct  as  to  pleading  to  or  fully  answc^'ring  the  hill,  within  a 
period  to  he  fixed  hy  the  court  or  judge,  and  undertaking  to 
speed  the  cause. 

liiile  40. 

A  defendant  shall  not  be  bound  to  answer  any  statement  or 
charge  in  the  bill,  unless  specially  and  particularly  interro- 
gated thereto  ;  and  a  defendant  shall  not  be  bound  to  answer 
any  interrogatory  in  the  hill  except  those  interrogatories 
which  such  defendant  is  required  to  answer;  and  where  a  de- 
fendant shall  answer  any  statement  or  charge  in  the  bill  to 
which  he  is  not  interrogated,  only  by  stating  his  ignorance  of 
the  matter  so  stated  or  charged,  such  answer  shall  be  deemed 
impertinent. 

December  Term,  1850. 

Ordered,  That  the  fortieth  rule,  heretofore  adoi)ted  and  pro- 
mulgated by  this  court  as  one  of  the  rules  of  practice  in  suits 
in  equity  in  the  circuit  courts,  be,  and  the  same  is  hereby,  re- 
pealed and  annulled.  And  it  shall  not  hereafter  be  necessary 
to  interrogate  a  defendant  specially  and  particularly  upon  any 
statement  in  the  bill,  unless  the  com})lainant  desires  to  do  so, 
to  obtain  a  discovery. 

liule  44. 

A  defendant  shall  be  at  liberty,  by  answer,  to  decline  an- 
swering any  interrogatory,  or  part  of  an  interrogatory,  from 
answering  which  he  might  have  protected  himself  by  demur- 
rer ;  and  he  shall  be  at  liberty  so  to  decline,  notwithstanding 
he  .shall  answer  other  parts  of  the  bill  from  which  he  might 
have  protected  himself  by  demurrer. 

liule  40. 

In  every  case  where  an  amendment  shall  he  made  after  an- 
swer filed,  the  defendant  shall   put  in  a  new  or  sup})leniental 


142  EQUITY    PLEADING. 

answer  on  or  before  the  next  succeeding  rule-day  after  that  on 
which  the  amendment  or  amended  bill  is  filed,  unless  the  time 
is  enlarged  or  otherwise  ordered  b}'  a  judge  of  the  court ;  and 
upon  his  defiiult,  the  like  2:»roceedings  may  be  had  as  in  cases 
of  an  omission  to  put  in  an  answer. 

Utile  25. 

In  order  to  prevent  unnecessary  costs  and  expenses,  and  to 
promote  brevity,  succinctness,  and  directness  in  the  allegations 
of  bills  and  answers,  the  regular  taxable  costs  for  every  bill 
and  answer  shall  in  no  case  exceed  the  sum  which  is  allowed 
in  the  State  court  of  chancery  in  the  district,  if  any  there  be  ; 
but  if  tliere  be  none,  then  it  shall  not  exceed  the  sum  of  three 
dollars  for  every  bill  or  answer. 

Rule  20. 

Every  bill  sliall  be  expressed  in  as  brief  and  succinct  terms 
as  it  reasonably  can  be,  and  shall  contain  no  unnecessary  re- 
cital of  deeds,  documents,  contracts,  or  other  instruments,  in 
h3£C  verba,  or  any  other  impertinent  matter,  or  any  scandalous 
matter  not  relevant  to  the  suit.  If  it  does,  it  may,  on  excep- 
tions, be  referred  to  a  master,  by  any  judge  of  the  court,  for 
impertinence  or  scandal ;  and  if  so  found  by  him,  the  matter 
shall  be  expunged  at  the  expense  of  the  plaintiff,  and  he  shall 
pay  to  the  defendant  all  his  costs  in  the  suit  up  to  that  time, 
unless  the  court  or  a  judge  thereof  shall  otherwise  order.  If 
the  master  shall  report  that  the  bill  is  not  scandalous  or  im- 
pertinent, the  plaintiff  shall  be  entitled  to  all  costs  occasioned 
by  the  reference. 

Ittile  27. 

No  order  shall  be  made  by  any  judge  for  referring  any  bill, 
answer,  or  pleading,  or  other  matter  or  pi-oceeding,  depending 
before  the  court,  for  scandal  or  impeitinence,  unless  excep- 
tions are  taken  in  writing  and  signed  by  counsel,  describing 
the  particular  passages  which  are  considered  to  be  scandalous 
or  impertinent ;  nor  unless  the  exceptions  shall  be  filed  on  or 


KQUITY    rr,  HADING.  143 

before  tlic  next  riilc-dny  after  tlie  process  on  tlie  l)ill  shall  Ito 
returnable,  or  alter  the  answer  or  pleading  isliled.  And  such 
order,  when  obtained,  shall  be  eon-sidered  as  aband(ine(l, 
unless  the  party  obtaining  the  order  shall,  without  any  un- 
necessary delay,  procure  the  nuister  to  examine  and  report 
for  the  same  on  or  before  the  next  succeeding  rule-day,  or  the 
master  shall  certify  that  further  time  is  necessary  for  him  to 
complete  the  examination. 

Rale  :i2. 

The  defendant  may  at  any  time  before  the  l>ill  is  taken  f<jr 
confessed,  or  afterward  with  the  leave  of  the  court,  demur  or 
plead  to  the  whole  bill,  or  to  part  of  it,  and  he  may  demur  to 
part,  i)lead  to  i)art,  and  answer  as  to  the  residue  ;  but  in  every 
case  in  which  the  bill  specially  charges  fraud  or  combination, 
a  plea  to  such  })art  must  be  accompanied  with  an  answer 
fortifying  the  i)lea  and  explicitly  denying  the  fraud  and  com- 
bination, and  the  facts  on  which  the  charge  is  founded. 

Bule  39. 

The  rule,  that  if  a  defendant  submits  to  answer  he  shall 
answer  fully  to  all  the  matters  of  the  bill,  shall  no  longer 
apply  in  cases  where  he  might  by  plea  protect  himself  from 
such  answer  and  discovery.  And  the  defendant  shall  be  en- 
titled in  all  cases  by  answer  to  insi.st  upon  all  matters  of  de- 
fense (not  being  matters  of  abatement,  or  to  the  character  of 
the  parties,  or  matters  of  form)  in  bar  of  or  to  the  merits  of 
the  bill,  of  which  he  may  be  entitled  to  avail  himself  by  a 
plea  in  bar ;  and  in  such  answer  he  shall  not  be  compellable 
to  answer  any  other  matters  than  he  would  be  com])ellable  to 
answer  and  discover  upon  tiling  a  })lea  in  bar  and  an  answer 
in  support  of  such  plea,  touching  the  matters  set  forth  in  the 
bill  to  avoid  or  repel  the  bar  or  defense.  Thus,  for  example, 
a  bona-Jide  purchaser,  for  a  valuable  consideration  without 
notice,  may  set  up  that  defense  by  way  of  answer  instead  of 
plea,  and   shall   be   entitled   to  the  same  protection,  and  shall 


144  EQUITY    PLEADING. 

not  be  compellable  to  make  any  further  answer  or  discovery 
of  bis  title  than  he  -would  be  in  any  answer  in  support  of  such 
plea. 

liule  52. 

Where  the  defendant  shall,  by  his  answer,  suggest  that  the 
bill  is  defective  for  want  of  parties,  the  plaintiff  shall  be  at 
liberty,  within  fourteen  days  after  answer  filed,  to  set  down 
the  cause  for  argument  upon  that  objection  only  ;  and  the 
purpose  for  which  the  same  is  so  set  down  shall  be  notified  by 
an  entry,  to  be  made  in  the  clerk's  order-book,  in  the  form  or 
to  the  effect  following  (that  is  to  say) :  "  Set  down  upon  the 
defendant's  objection  for  want  of  parties."  And  where  the 
plaintiff  shall  not  so  set  down  his  cause,  but  shall  proceed 
therewith  to  a  hearing,  notwithstanding  an  objection  for  want 
of  parties  taken  by  the  answer,  he  shall  not,  at  the  hearing  of 
the  cause,  if  the  defendant's  objection  shall  then  be  allowed  be 
entitled  as  of  course  to  an  order  for  liberty  to  amend  his  bill 
by  adding  parties.  But  the  court,  if  it  thinks  fit,  shall  be  at 
liberty  to  dismiss  the  bill. 

Btile  53. 

If  a  defendant  shall,  at  the  hearing  of  a  cause,  object  that  a 
suit  is  defective  for  want  of  parties  not  having  by  plea  or 
answer  taken  the  objection,  and  therein  specified  by  name  or 
description  of  parties  to  whom  the  objection  applies,  the  court 
(if  it  shall  think  fit)  shall  be  at  liberty  to  make  a  decree  sav- 
ing the  rights  of  the  absent  parties. 

Bide  59. 

Every  defendant  may  swear  to  his  answer  before  any  justice 
or  judge  of  any  court  of  the  United  States,  or  before  any  com- 
missioner appointed  by  any  circuit  court  to  take  testimony  or 
depositions,  or  before  any  master  in  chancery  appointed  by 
any  circuit  court,  or  before  any  judge  of  any  court  of  a  state 
or  territory,  or  before  any  notary  public. 


EQl  ITV     I'l.KADINci.  145 


Iiu1e4l. 


The  interrogatories  contained  in  the  interrogating  i>art  of 
the  bill  shall  be  divided  as  conveniently  as  may  be  from  each 
other  and  numbered  consecutively  1,  2,  3,  etc.;  and  the  in- 
terrogatories which  each  defendant  is  required  to  answer  shall 
be  specified  in  a  note  at  the  foot  of  the  bill,  in  the  form  or  to 
the  effect  following,  that  is  to  say  :  "  The  defendant  (A.  B.)  is 
required  to  answer  the  interrogatories  numbered  respectively 
1,  2,  3,"  etc.;  and  the  office  copy  of  the  bill  taken  by  each 
defendant  shall  not  contain  any  interrogatories  except  those 
which  such  defendant  is  so  required  to  answer,  unless  such 
defendant  shall  require  to  be  furnished  with  a  copy  of  the 
whole  bill. 

December  Term,  1871. 

Amendment  to  41s^  Equity  Rule. 

If  the  complainant,  in  his  bill,  shall  waive  an  answer  under 
oath,  or  shall  only  require  an  answer  under  oath  with  regard 
to  certain  specified  interrogatories,  the  answer  of  the  defendant, 
though  under  oath,  except  such  part  thereof  as  shall  be 
directly  responsive  to  such  interrogatories,  shall  not  be  evi- 
dence in  his  favor,  unless  the  cause  be  set  down  for  hearing 
on  bill  and  answer  only  ;  but  may  nevertheless  be  used  as  an 
affidavit,  with  the  same  effect  as  heretofore,  on  a  motion  to 
grant  or  dissolve  an  injunction,  or  on  any  other  incidental 
motion  in  the  cause ;  but  this  shall  not  prevent  a  defendant 
from  becoming  a  witness  in  his  own  behalf  under  section  3  of 
the  act  of  Congress  of  July  2,  1864. 

Bule  30. 

No  demurrer  or  plea  shall  be  held  bad  and  overruled  upon 
argument,  only  because  such  demurrer  or  plea  shall  not  cover 
so  much  of  the  bill  as  it  might  by  law  have  extended  to. 
10 


14 J  EQUITY    PLEADING. 

Mule  37. 

^0  demurrer  or  plea  shall  be  held  bad  and  overruled  upon 
-argument,  only  because  the  answer  of  the  defendant  may  ex- 
tend to  some  part  of  the  same  matter  as  may  be  covered  by 
such  demurrer  or  plea. 

Hale  31. 

No  demurrer  or  plea  shall  be  allowed  to  be  filed  to  any  bill, 
unless  upon  a  certificate  of  counsel,  that  in  his  opinion  it  is 
well  founded  in  j^oint  of  law,  and  supported  by  the  affidavit 
of  the  defendant  ;  that  it  is  not  interposed  for  delay  ;  and,  if 
^  plea,  that  it  is  true  in  point  of  fact. 

LANGDON  V.  GODDARD. 
(Circuit  Court  for  New  Hampshire  :  3  Story,  13-25.     1843. ) 

Statement  of  Facts. — This  cause  was  heard  upon  excep- 
tions to  the  answer  of  defendant  Goddard  to  complainants' 
bill.  The  first  exception  was  that  a  certain  allegation  on  the 
ninth  page  of  the  answer  was  impertinent,  and  should  be 
stricken  out.  The  allegation  in  question  was  to  the  effect  that 
the  testatrix,  Elizabeth  Sewall,  executed  a  codicil  to  her  will 
on  August  21, 1838,  being  moved  thereto  by  the  importunities 
of  conn)lainants,  and  charging  the  complainants  with,  in  ef- 
fect, dictating  the  codicil.  The  will  and  codicil  in  question 
had,  prior  to  the  filing  of  the  answer,  been  duly  admitted  to 
probate  by  the  proper  court.  The  second  exception  was  to  a 
statement  that  he,  defendant,  had  sought  to  procure  Mr.  Emer- 
son to  effect  a  settlement  of  the  disputes  between  him  and 
complainants,  and  that  he  and  Emerson  had  agreed  upon 
terms,  to  which,  however,  com|)lainants  would  not  afterwards 
adhere.     This  statement,  it  was  insisted,  was  impertinent. 

The  third  exception  was  that  defendant  had  not,  to  the  best 
of  his  knowledge  and  belief,  answered  a  certain  interrogatory 
of  plaintiffs. 

Opinion  by  Story,  J. 

I  am  of  opinion  that  all  the  exceptions  to  the  answer  are 
well  taken,  and  ought  to  be  allowed.  The  first  exception 
turns  \\\)o\\  the  allegations  in  the  answer  therein  referred  to, 
by  which  an  attempt  is  made  by  a  side  wind  to  impeach  the 


LANGDON    V.    GODDAKD.  147 

bona  fides  aiul  due  execution  ol"  the  codicil  to  the  will  of  Mrs. 
Sewall,  and  by  implication  to  insinuate  that  it  was  procured 
by  fraud  and  imposition.  Now,  it  is  well  known  that  the 
courts  of  probate  have  a  full  and  exclusive  jurisdiction,  as  well 
in  New  llam[)shire  as  in  Maine,  over  the  probate  of  wills,  and 
that  their  decree,  attirming  the  validity  of  a  will  or  codicil, 
and  allowing  the  same,  is  conclusive  u])on  the  subject-matter, 
and  is  not  re-exam inable  elsewhere.  The  present  codicil  has 
been  duly  admitted  and  allowed  by  the  probate  courts  of  both 
states.  The  allegation  of  the  answer  here  excepted  to  is, 
therefore,  at  once  impertinent  and  immaterial,  and  endeavors 
to  cast  a  shade  upon  the  transaction,  which  is  not  justifiable 
or  excusable.  It  is  not  a  matter  which  can  be  filed  in  contro- 
versy in  the  present  suit,  or  admitted  to  proof. 

The  second  exception  is  to  the  allegation  in  the  answer  set- 
ting up  an  attempted  settlement  and  arrangement,  of  the  na- 
ture and  terms  of  which  no  account  is  given,  by  the  defendant 
with  the  plaintiifs,  through  the  means  of  a  professional  friend, 
which  was  not  accepted  or  adhered  to  by  the  ])laintitrs,  and 
therefore  failed  of  its  purpose.  What  is  this  but  to  stuff  the 
answer  with  immaterial  and  impertinent  suggestions  for  tha 
purpose  of  giving  a  false  gloss  and  coloring  to  the  controversy? 
Besides,  as  the  nature  and  terms  of  the  proffered  settlement 
and  arrangement  are  nowhere  stated,  it  is  impossible  for  the 
court  to  see  what  possible  bearing  it  could  properly  have  upon 
the  cause. 

The  third  exception  is  the  insufficiency  of  the  answer  to  the 
eighth  interrogatory  propounded  In'  the  bill,  and  states  the 
very  words  of  that  interrogatory.  Tiiat  interrogatory  un- 
doubtedly was  intended  to  refer  to  the  tbllowing  allegation  in 
the  bill,  viz.:  '' Your  orators  further  say  that  thereafterwards 
the  said  Elizabeth  frequently  called  u[)on  the  said  Goddard  to 
refund  to  her  the  amount  of  the  said  notes  so  sold  by  her  to 
him,  or  retui-n  the  same,  and  that  tlu^  said  Goddard  repeat- 
edly promised  so  to  do.  That  on  the  20th  day  of  August, 
1S3S,  the  said  William  (Joddard  ])ropai'cd  with  his  own  hand 
an  instrument  purporting  to  be  a  codicil  to  the  will  of  .said 
Elizabeth,  and  ]»rocured  the  said  Elizabeth  to  sign  the  same, 
therein  and  thereby  bequeathing  to  him  the  aforesaid  notes  of 
Floyd  and  Harris,  and  also  all  sums  of  money  due  from  him 
to  the  said  lillizabeth,  which  codicil  was  so  signed  by  the  said 
Elizabeth  by  inducement  of  the  said  Goddard,  and  by  leason 


148  EQUITY    PLEADING. 

of  the  confidence  subsisting  between  the  said  Elizabeth  and 
the  said  Goddard,  and  was  thereafterward  revoked  b}'  the  said 
Elizabeth,  which  codicil  was,  after  its  execution,  carried  awa}'- 
by  the  said  William,  and  is  now  in  his  possession."  It  is  cer- 
tainly not  as  pointed,  full  and  precise  as  it  ought  to  be  to  meet 
all  the  stress  of  the  allegations  of  the  bill.  It  does  not  inter- 
rogate as  to  the  present  possession  by  the  defendant  of  that 
codicil,  or  as  to  what  has  become  of  it,  and  when  he  last  saw 
it,  and  what  were  the  exact  purport  and  words  thereof;  nor 
does  it  call  upon  the  defendant  to  produce  it.  Still,  however, 
it  is  sufficient  to  call  upon  the  defendant  for  a  fair  and  full  an- 
swer to  the  plain  import  and  objects  thereof.  I  cannot  but 
consider  the  answer  put  in  to  this  point  as  inexplicit  and  eva- 
sive, if  it  does  not  deserve  the  stronger  imputation  of  being 
disingenuous.  I  shall  therefore  direct  that  the  defendant  put 
in  a  more  full  and  direct  answer  to  the  interrogatory  and  alle- 
gation in  the  bill,  applicable  thereto,  so  that  the  justice  of  the 
case  may  on  this  point  be  fully  presented  to  the  court.  I  shall 
also  give  leave  to  the  plaintiff  to  put  additional  interrogatories 
to  the  defendant  applicable  to  this  same  allegation,  so  as  to 
compel  a  direct  and  positive  disclosure  of  the  facts  appertain- 
ing thereto.  The  defendant  is  to  pay  the  costs  of  the  hearing 
uj)on  and  allowance  of  these  exceptions,  which  I  shall  direct 
to  be  taxed  at  $10. 

LIVINGSTON  V.  STOEY. 
(9  Peters,  632-662.     18.35.) 

Opinion  by  Mr.  Justice  Thompson. 

Statement  of  Facts. — The  appellant,  Edward  Livingston, 
filed  his  bill  of  complaint  in  the  district  court  of  the  United 
States  for  the  eastern  district  of  Louisiana,  against  the  appellee, 
Benjamin  Story,  to  set  aside  a  conveyance  made  b}'  him  of 
certain  lots  of  land  in  the  city  of  New  Orleans,  and  to  be  re- 
stored to  the  possession  of  said  lots,  alleging  that  the  deed  was 
given  on  a  contract  for  the  loan  of  money.  Although  in  the 
form  of  a  sale,  it  was  in  reality  a  pledge  for  the  repayment  of 
the  money  loaned,  and  calling  for  an  account  of  the  rents  and 
profits  of  the  property. 

To  this  bill  the  defendant  demurred,  and  the  court  sustained 
the  demurrer  and  dismissed  the  complainant's  bill,  and  the 
cause  comes  into  this  court  on  appeal.     It  will  be  enough,  for 


LIVINGSTON    V.    STORY.  Ml) 

the  purpose  of  disposing  of  the  ([uestioiis  which  have  heeu 
made  in  this  case,  to  state  only  some  of  the  leading  I'aets 
which  are  set  forth  and  stated  in  the  YnW. 

The  bill  alleges  that  on  or  about  the  25th  of  July,  1S;J2, 
the  defendant  and  John  A.  Fort  loaned  to  him,  the  complain- 
ant, the  sum  of  $22,9o(),  to  secure  the  payment  of  which,  with 
interest  at  the  rate  of  eighteen  per  cent,  per  annum,  he  con- 
veyed to  them  a  lot  of  ground  in  New  Orleans  with  the  build- 
ings and  improvements  thereon.  That  a  counter  letter  or  in- 
strument was,  at  the  same  time,  executed  by  the  other  parties, 
by  which  they  stipulated  to  reconvey  the  property  on  certain 
conditions.  That  the  lot  was  covered  with  fifteen  stores  in 
an  untinished  state,  and  the  object  of  the  loan  w'as  to  complete 
them.  The  property  is  stated  to  have  been  worth  at  that 
time  $60,000,  and  is  now  worth  double  that  sum.  That  the 
complainant,  soon  after  the  said  transaction,  left  New  Orleans, 
where  he  then  resided,  on  a  visit  to  the  state  of  New  York, 
expecting  that  during  his  absence  some  of  the  stores  would 
have  been  finished,  or  in  a  state  to  let.  That,  on  his  return, 
he  found  that  Story  and  Fort  had  paid  $8,000  to  a  contractor, 
who  had  failed  to  finish  the  buildings,  the  rent  of  each  of  the 
three  smallest  of  which  would  be  the  interest  of  $10,000  a 
year,  when  finished.  A  further  time  was  requested  for  the 
payment  of  the  money,  which  Story  and  Fort  would  not  agree 
to,  but  upon  condition  that  the  property  should  be  advertised 
for  sale  on  a  certain  day  named  ;  that  the  sum  due  should  l)e 
increased  from  $25,000  to  $27,000,  which  sum  was  made  up 
by  adding  to  the  $25,000  the  following  sums  :  $1,500  for  in- 
terest for  the  delay  of  four  months,  at  eighteen  per  cent., 
$800  for  auctioneer's  commissions,  $50  for  advertising,  and 
$200  arl)itrarily  added  without  any  designation  ;  and  that  he, 
the  complainant,  should  annul  the  counter  letter  given  to  liim 
by  Story  and  I'\)rt.  That  the  com[)laiiuint,  being  entirely  at 
the  mercy  of  the  said  Story  and  Fort,  consented  to  these  terms, 
in  ho|)es  of  being  able  to  relieve  himself  before  the  da}^  fixed 
for  the  sale  of  his  property  ;  but  being  disa})j)ointed,  he  was 
on  that  day,  in  order  to  obtain  a  delay  of  sixty  days,  forced  to 
consent  to  sign  a  pjjpcr,  by  which  it  was  agreed  that  the  debt 
should  be  augmented  to  the  sum  of  $27,830,  and  that  if  the 
same  was  not  paid  at  the  expiration  of  the  sixty  days,  the 
property  should  belong  to  the  said  Fort  and  Story  without  any 
sale.     The  bill  contains  some  other  allegations   of  hardship 


150  EQUITY    PLEADING. 

and  oppression,  and  alleges  that  the  rents  and  profits  of  the 
propei'ty  received  by  Fort  and  Story  in  the  lifetime  of  Fort, 
and  by  Story  since  the  death  of  Fort,  amount,  at  least,  to 
$60,000.  The  bill  then  prays  that  the  said  Benjamin  Story 
may  be  cited  to  appear  to  the  bill  of  complaint,  and  answer 
the  interrogatories  therein  propounded. 

The  defendant  in  the  court  below  demurs  to  the  whole  bill, 
and  for  cause  shows  that  the  complainant  has  not  by  his  said 
bill  made  such  a  case  as  entitles  him,  in  a  court  of  equity  in 
this  state,  to  any  discovery  from  this  defendant,  touching  the 
matters  contained  in  the  said  bill,  or  any  or  either  of  such 
matters,  nor  to  entitle  the  said  complainant  to  any  relief  in 
this  court,  touching  any  of  the  matters  therein  complained 
of.  The  want  of  proper  parties  is  also  assigned  for  cause  of 
demurrer. 

The  court  below  did  not  notice  the  want  of  parties,  but 
sustained  the  demurrer  on  the  other  causes  assigned. 

The  argument  addressed  to  this  court  has  been  confined 
principally  to  the  general  question  whether  the  district  court 
of  the  United  States,  in  Louisiana,  lias  equity  powers  ;  and,  if 
so,  what  are  the  modes  of  proceeding  in  the  exercise  of  such 
powers.  The  great  earnestness  with  which  this  power  has 
been  denied  at  the  bar  to  the  district  court  may  make  it 
proper  briefly  to  state  the  origin  of  the  district  court  of  that 
state,  and  the  jurisdiction  conferred  upon  it  bv  the  laws  of  the 
United  States.  When  the  constitution  was  adopted,  and  the 
courts  of  the  Union  organized,  and  their  jurisdiction  dis- 
tributed, Louisiana  formed  no  part  of  this  Union.  It  is  not 
reasonable,  therefore,  to  conclude  that  any  phraseology  has 
been  adopted  with  a  view  to  the  peculiar  local  system  of  laws 
in  that  state.  She  was  admitted  into  the  Union  in  the  year 
1812;  and,  b}'  the  act  of  congress  (2  Stats,  at  Large,  701), 
passed  for  that  purpose  (4  Laws  U.  S.,  402),  it  is  declared  that 
there  shall  be  established  a  district  court,  to  consist  of  one 
judge,  to  be  called  the  district  judge,  who  shall,  in  all  things, 
have  and  exercise  the  same  jurisdiction  and  powers,  which,  by 
the  act,  the  title  whereof  is  in  this  section  recited,  were  given 
to  the  district  judge  of  the  territory  of  Orleans.  By  the  act 
here  referred  to  for  the  jurisdiction  and  powers  of  the  court 
(2  Stats,  at  Large,  283  ;  3  Laws  U.  S.,  606),  a  district  court  is 
established  to  consist  of  one  judge;  and  it  declares  that  he 
shall,  in  all  things,  have  and  exercise  the  same  jurisdiction 


LIVINGSTON    V.    STOKV.  151 

and  powers  which  avu  by  law  gh'cn  to,  or  may  be  excrci.scd  by 
the  judge  of  the  Kentucky  district.  And,  by  tlie  judiciary  act 
of  1789  (1  Stats,  at  Largx^  73  ;  2  Laws' U.  S.,'G0),  it  is  declared 
that  tlie  district  court  in  Kentucky  sliall,  besides  the  juris- 
diction given  to  other  district  courts,  have  jurisdiction  of  all 
other  cau.ses,  except  of  appeals  and  writs  of  error,  hereinafter 
made  cognizable  in  a  circuit  court,  and  shall  proceed  theiein 
in  the  same  manner  as  a  circuit  court.  And  such  manner  of 
proceeding  is  pointed  out  by  the  process  act  of  1702  (1  JStats. 
at  Large,  275  ;  2  Laws  LT.  S.,  299),  which  declares  that  the 
modes  of  proceeding  in  suits  of  common  law  shall  be  the  same 
as  are  now  used  in  the  snid  courts  respectively,  in  jjursuance 
of  the  act  entitled  "An  act  to  regulate  process  in  the  courts  of 
the  L'nited  States  ;  "  namely,  the  same  as  are  now  used  and 
allowed  in  the  supreme  courts  of  the  respective  states  (2  Laws 
L'.  S.,  72  ;  1  Stats,  at  Large,  93),  and  in  suits  of  c([uity,  and 
those  of  admiralty  and  maritime  jurisdiction,  according  to  the 
principles,  rules  and  usages  which  belong  to  courts  of  equity 
and  courts  of  admiralty  respectively,  as  contradistinguished 
from  courts  of  common  law  ;  subject  to  such  alteration  by  the- 
courts  as  may  be  thought  expedient,  etc. 

From  this  view  of  the  acts  of  Congress  it  will  be  seen  that, 
prior  to  the  act  of  1824,  which  will  be  noticed  hereafter, 
Louisiana,  when  she  came  into  the  LTnion,  had  organized 
therein  a  district  court  of  the  United  States,  having  the  same 
jurisdiction,  except  as  to  appeals  and  writs  of  error,  as  the 
circuit  courts  of  the  United  States  in  the  other  states.  And 
that,  in  the  modes  of  proceeding,  that  court  was  recjuired  to 
proceed  according  to  the  principles,  rules  and  usages  which 
belong  to  courts  of  equity,  as  contradistinguished  from  courts 
of  common  law.  And  whether  there  were  or  not,  in  the  sev- 
eral states,  courts  of  equity  proceeding  according  to  such  prin- 
ciples and  usages  made  no  difference,  according  to  the  con- 
struction uniformly  adojitcd  by  this  couiU 

In  the  case  of  Robinson  r.  Cam})bell,  3  Wlieat.,  222,  it  is 
said  that,  in  some  states  in  the  Union,  no  court  of  chancery 
exists  to  administer  equitable  relief.  In  .some  of  the.sc  states 
courts  of  law  recognize  and  enforce,  in  suits  at  law,  all  equitable 
claims  and  rights  which  a  court  of  equity  would  recognize 
and  enforce;  and  in  others  all  relief  is  denied,  and  such  equit- 
able claims  and  rights  are  to  be  considered  as  mere  nullities 
at  law  ;  and   a   construction,  therefore,  that   Wduld   aduj»t   the 


152  EQUITY    I'LEADING. 

state  practice  in  all  its  extent  would  at  once  extinguish  in 
such  states  the  exercise  of  equitable  jurisdiction.  That  the 
acts  of  congress  have  distinguished  between  remedies  at  com- 
mon law  and  in  equity,  and  that,  to  effectuate  the  purposes  of 
the  legislature,  the  remedies  in  the  courts  of  the  United  States 
are  to  be  at  common  law  or  in  equity,  not  according  to  the 
practice  of  the  state  courts,  but  according  to  the  principles  of 
common  law  and  equity,  as  distinguished  and  defined  in  that 
country  from  which  we  derive  our  knowledge  of  those  ])rin- 
cijiles.  So,  also,  in  the  case  of  the  United  States  v.  Howland, 
4  Wheat.,  114,  the  bill  was  filed  on  the  equity  side  of  the  cir- 
cuit court  of  the  United  States  in  Massacliusetts,  in  which 
state  there  was  no  court  of  chancery  ;  and,  in  answer  to  this 
objection,  the  court  says  :  "  As  the  courts  of  the  Union  have  a 
chancery  jurisdiction  in  every  state,  and  the  judiciary  act 
confers  the  same  chancery  powers  on  all,  and  gives  the  same 
rule  of  decision,  its  jurisdiction  in  Massachusetts  must  be  the 
same  as  in  other  states." 

That  congress  has  the  power  to  establish  circuit  and  district 
courts  in  any  and  all  the  states,  and  confer  on  them  equitable 
jurisdiction  in  cases  coming  within  the  constitution,  cannot 
admit  of  a  doubt.  It  falls  within  the  express  words  of  the 
constitution  :  "  The  judicial  power  of  the  United  States  shall 
be  vested  in  one  supreme  court,  and  in  such  inferior  courts  as 
the  congress  may,  from  time  to  time,  ordain  and  establish." 
Article  3. 

And  that  the  power  to  ordain  and  establish  carries  with  it 
the  power  to  prescribe  and  regulate  the  modes  of  proceeding 
in  such  courts  admits  of  as  little  doubt.  And,  indeed,  upon 
no  other  ground  can  the  appellee  in  this  case  claim  the  benefit 
of  the  act  of  1824.  Session  Laws,  56.  The  very  title  of  that 
act  is  to  regulate  the  mode  of  practice  in  the  courts  of  the 
United  States  in  the  district  of  Louisiana  ;  and  it  professes  no 
more  than  to  regulate  the  ])ractice.  It  declares  that  the  mode 
of  proceeding  in  civil  causes  in  the  courts  of  the  United  States 
that  now  are  or  hereafter  may  be  established  in  the  state  of 
Louisiana  shall  be  conformable  to  the  laws  directing  the  mode 
of  proceeding  in  the  district  courts  of  said  state.  And  power 
is  given  to  the  judge  of  the  United  States  court  to  make,  by 
rule,  such  provisions  as  are  necessary  to  adapt  the  laws  of  pro- 
cedure in  the  state  court  to  the  organization  of  the  courts  of 
the  United  States,  so  as  to  avoid  any  discrepancy,  if  any  such 


LIVIX(iST()N     W    S'l()i;V.  1").'} 

should  exist,  bt'tweeii  such  staU;  hiws  ;iiul  the  l;i\\<  ol'  ihc 
United  States.  The  desci'iptive  terms  hnc  used,  civil  actions, 
are  broad  enough  to  embrace  cases  at  law  and  in  e(|uity  ;  and 
ma}'  very  fairly  be  construed  as  used  in  contradistinction  to 
criminal  causes.  There  are  no  nstrictive  or  cx|ilanatory 
words  employed,  limiting  the  terms  to  actions  at  law.  They 
ap})ly  equally  to  cases  in  equity;  and  il'  there  are  any  laws  in 
Louisiana  directing  the  mode  of  procedure  in  eijuity  causes, 
they  are  adopted  by  the  act  of  1824,  and  will  goyern  the  prac- 
tice in  the  courts  of  the  United  States.  But  tlie  question 
arises.  What  is  to  be  done  if  there  are  no  equity  state  courts, 
nor  any  laws  regulating  the  practice  in  equity  causes?  This 
question  would  seem  to  be  answered  by  the  cases  already  re- 
ferred to,  of  Robinson  v.  Campbell,  3  Wheat.,  222,  and  The 
United  States  v.  Howland,  4  Wheat.,  114.  And  also  by  the 
case  of  Parsons  v.  Bedford,  3  Pet.,  444.  In  the  latter  ca.se  the 
court  sa}' :  "  That  the  course  of  proceeding,  under  the  state 
law  of  Louisiana,  could  not,  of  itself,  have  any  intrinsic  force 
or  obligation  in  the  courts  of  the  United  States  organized  in 
that  state,  except  so  far  as  the  act  of  1824  adopted  the  state 
practice  ;  that  no  absolute  repeal  was  intended  of  the  antece- 
dent modes  of  proceeding  authorized  in  the  courts  of  the 
United  States  under  the  former  acts  of  congress." 

If,  then,  as  has  been  as.serted  at  the  bar,  there  are  no  equita- 
ble claims  or  rights  I'ecognized  in  that  state,  nor  any  courts  of 
equity,  nor  state  laws  r  guJating  the  practice  in  equity  causes, 
the  law  of  1824  does  not  apply  to  the  case  now  before  this 
court ;  and  the  district  court  was  bound  to  adopt  the  antece- 
dent mode  of  proceediiig  authorized  under  the  former  acts  of 
congress ;  otherwise,  as  is  said  in  the  case  of  Robinson  v. 
Campbell,  the  exercise  of  equitable  jurisdictidii  would  be  ex- 
tinguished in  that  state,  because  no  equitable  claims  or  rights 
which  a  court  of  equity  would  enforce  are  there  recognized. 
And  there  being  no  court  of  equity  in  that  state,  does  not  pre- 
vent the  exercise  of  equity  jurisdiction  in  the  courts  of  the 
United  States,  according  to  the  doctrine  of  this  court  in  the 
ca.se  of  The  United  States  v.  Howland,  which  aro.se  in  the 
state  of  Massachusetts,  where  there  are  no  equity  state  courts. 
"\\'e  have  not  been  referred  to  any  state  law  of  Louisiana,  es- 
tablishing any  state  practice  in  equity  cases,  nor  to  any  rules 
ado])ted  by  the  district  judge  in  relation  to  .such  ])ractice  ;  and 
we   have  some   i-eason   to  conclude   that   no  such    rules  exist. 


154  EQUITY    PLEADING. 

For,  in  a  record  now  before  us  from  that  court,  in  the  case  of 
Hiriart  v.  Ballon,  *.*  Pot.,  loG,  we  find  a  set  of  rules  purport- 
ing to  have  been  adopted  by  the  couil  on  the  14th  of  Decem- 
ber, 1(820,  with  the  following  caption  :  "  (ieiieral  rules  for  the 
government  of  the  United  States  court  in  the  eastern  district 
of  Louisiana  in  civil  cases  or  suits  at  law  as  contradistin- 
guished from  admi]-alty  and  equity  cases,  and  criminal  prose- 
cutions ;  made  in  pursuance  of  the  seventeenth  section  of  the 
judiciary  act  of  1789,  and  of  the  first  section  of  the  act  of  con- 
gress of  the  2()th  of  May,  1824,  entitled,  '  An  act  to  regulate 
the  mode  of  practice  in  the  courts  of  the  United  States  tor  the 
district  of  Louisiana.'  "  And  all  other  rules  are  annulled  ; 
and  these  rules  relate  to  suits  at  law  and  in  admiralty  only, 
and  not  to  suits  in  equity.  From  which  it  is  reasonable  to 
infer  that  the  district  judge  did  not  consider  the  act  of  1824  as 
extending  to  suits  in  equity;  and  if  so,  it  is  very  certain  that 
the  demurrer  ought  to  have  been  overruled.  For,  according 
to  the  ordinary  mode  of  proceeding  in  courts  of  equity,  the 
matters  stated  in  the  bill  are  abundantly  sufficient  to  entitle 
the  complainant  both  to  a  discovery  and  relief;  and  by  the 
demurrer,  everything  well  set  forth,  and  which  was  necessary 
to  support  the  demand  in  the  bill,  must  be  taken  to  be  true. 
1  Ves.  Sen.,  42(1 ;  1  Ves.  Jr.,  289. 

And  if  any  part  of  the  bill  is  good,  and  entitles  the  com- 
plainant either  to  relief  or  discovery,  a  demurrer  to  the  whole 
bill  cannot  be  sustained.  It  is  an  established  and  universal 
rule  of  pleading  in  chancery,  that  a  defendant  may  meet  a 
complainant's  bill  by  several  modes  of  defense.  He  may  de- 
mur, answer,  and  plead  to  different  parts  of  a  bill.  So  that  if 
a  bill  for  discovery  and  relief  contains  pro])er  matter  for  the 
one,  and  not  for  the  other,  the  defendant  should  answer  the 
proper  and  demur  to  the  improper  matter.  But  if  he  demurs 
to  the  whole  bill,  the  demurrer  must  be  overruled.  5  Johns. 
Ch.,  186  ;    1  Johns.  Cas.,  433. 

But  if  we  test  this  bill  by  any  law  of  Louisiana  which  has 
been  shown  at  the  bar,  or  that  has  fallen  under  our  observa- 
tion, the  demurrer  cannot  be  sustained.  The  objection 
founded  on  the  alleged  want  of  proper  parties,  because  the 
heir  and  residuary  legatee  of  John  A.  Fort  is  not  made  a 
party,  is  not  well  founded.  The  bill  states  that  in  the  year 
1828,  after  the  death  of  Fort,  the  defendant,  Benjamin  Story, 
took  the  whole  of  the  property,  by  some  arrangement  with  the 


l.niNCSTON     V.    STORY.  lo5 

licirs  of  Fort ;  aiul  that  he  over  .since  ha.s  been,  and  is  now,  in 
the  sole  }>ossession  thereof,  and  has  received  tlie  iTnts  ;ind 
profits  of  the  same.  This  fact  the  deniui'rer  admits.  W'lierehy 
Benjamin  Story  became  the  sole  party  in  interest. 

The  causes  of  denuiiier  assigned  are  general  ;  that  the  com- 
plainant has  not,  by  his  bill,  made  .such  a  case  as  entitles  him, 
in  a  court  of  equity  in  that  .state,  either  to  a  discovery  or  relief. 
In  the  argument  at  the  bar  there  has  l)een  no  nttempt  to  j)oint 
out  in  wliat  resjiect  the  bill  is  defective,  either  in  form  or  sub- 
stance, as  to  the  discovery,  if  it  is  to  be  govei'iicd  by  the 
ordinai'v  rules  of  pleading  in  a  court  of  chancery.  And  if  the 
objection  rests  upon  the  want  of  the  right  in  the  complainant 
to  call  upon  the  defendant  for  any  di.scovery  at  all,  the  objec- 
tion is  not  sustained  even  by  the  laws  of  Louisiana.  But  on 
the  contrary,  it  is  expressly  provided  by  a  law  of  that  state, 
that  when  any  plaintiff  shall  wish  to  obtain  a  discovery  from 
the  defendant,  on  oath,  .such  plaintiff  may  insert  in  his  peti- 
tion pertinent  interrogatories,  and  may  call  upon  the  defend- 
ant to  answer  them  on  oath;  and  that  the  defendant  shall 
distinctly  answer  to  such  interrogatories,  provided  they  do  not 
tend  to  charge  him  with  any  crime  or  offense  against  any 
penal  law,  neither  of  which  has  been  pretended  in  this  case. 
2  Martin's  Dig.,  158. 

Nor  has  it  been  attempted  to  point  out  in  what  respect  the 
bill  of  complaint  is  defective,  either  in  form  or  substance,  as 
to  the  matters  of  relief  prayed.  In  this  respect  also,  the  bill, 
according  to  the  ordinary  course  of  proceeding  in  a  court  of 
chancery,  is  unobjectionable ;  and  indeed  would  l)e  amply 
sufficient  in  the  state  courts,  under  the  law  of  Louisiana ; 
which  declares  that  all  suits  in  the  .supreme  court  shall  be 
commenced  by  petition,  addressed  to  the  court,  which  shall 
state  the  names  of  the  parties,  their  j)laces  of  residence,  and 
the  cause  of  action,  with  the  necessary  circumstances  of  places 
and  dates  ;  and  shall  conclude  with  a  prayer  for  relief  adapted 
to  the  circumstances  of  the  case.  2  IMartin's  Dig.,  148. 
These  ar(>  the  essential  requisites  in  an  ordinary  bill  in 
chancery.  It  can  cei'tainly  not  be  pretended  that  it  is  any 
objection  in  the  ca.se  before  us  that  the  bill  filed  is  called  a  bill 
of  complaint,  instead  of  a  petition. 

The  sufficiency  of  the  objections,  therefore,  nnist  turn  upon 
the  general  question  whether  the  distiict  court  of  r>ouisiana 
has,  by  the  constitution  and  laws  of  the  United  States,  the 


156  EQUITY    I'J.IOADINO. 

same  e([uity  [juwci-s  as  a  circuit  couit  of  the  United  States  has 
in  t\u)  other  states  of  the  Union  ;  and  we  think  it  has  been 
alread}'  shown  that  it  has ;  but  that,  according  to  the  pro- 
visions of  the  act  of  1824,  the  mode  of  proceeding  in  the  exer- 
cise of  such  powers  must  be  conformably  to  the  laws  directing 
the  mode  of  practice  in  the  district  courts  of  that  state,  if  any 
such  exist ;  and  according  to  such  rules  as  may  be  established 
by  the  judge  of  the  district  court,  under  the  authority  of  the 
act  of  1824.  And  if  no  such  laws  and  rules  ap[)licable  to  the 
case  exist  in  the  state  of  Louisiana,  then  such  equity  powers 
must  be  exercised  according  to  the  principles,  rules  and  usages 
of  the  circuit  courts  of  the  United  States,  as  regulated  and 
prescribed  for  the  circuit  courts  in  the  other  states  of  the  Union. 
The  decree  of  the  district  court  must  accordingly  be  reversed, 
and  the  cause  sent  back  for  further  proceedings. 

HAYES  V.  DAYTON. 
(Circuit  Court  for  New  York  :  18  Blatchford,  420-426.     1880.) 

Opinion  by  Blatchford,  J. 

Statement  of  Facts. — The  bill  in  this  case  states  that  the 
plaintiff  invented  certain  "  improvements  in  ventilators,  sky- 
lights, skylight  turrets,  conservatories  and  other  glazed  struc- 
tures and  ventilating  louvres,"  described  in  "  several  letters 
patent  and  re-issues  thereof."  It  then  avers  that  he  obtained 
six  several  patents,  Nos.  94,203  and  100,143,  and  106,157,  and 
112,594,  and  143,149,  and  143,153  ;  tliat  he  obtained  re-issues 
of  all  of  them,  the  re-issues  being  six  in  number,  one  of  each 
(though  it  does  not  appear  of  which  original  any  particular 
re-issue  is  the  re-issue),  the  re-issues  being  number  8,597  and 
8,674,  and  8,675,  and  8,676,  and  8,688,  and  8,689  ;  and  that, 
since  the  re-issues,  the  defendant  has,  without  authority,  in- 
fringed said  several  re-issues,  and  made,  used  and  sold  said  in- 
ventions. The  bill  interrogates  the  defendant  as  to  whether  he 
has  made  and  sold  "  ventilators,  skylights,  skylight  turrets, 
conservatories  and  other  glazed  structures  and  ventilating 
louvres,  and  embraced  within  any  or  either"  of  tlie  said  "sev- 
eral letters  patent  and  re-issued  letters  patent ;  "  also,  in  four 
several  questions,  as  to  whether  lie  lias  made,  sold  or  used 
what  is  claimed  in  each  one  of  the  four  claims  in  re-issue  No. 
8,597,  quoting  it ;  and  the  like  as  to  each  one  of  fifteen  claims 
in  re-issue  No.  8,674,  and  of  seven  claims  in  re-issue  No.  8,675, 


IIAYKS    V.    DAYTON.  l')? 

and  of  two  claims  in  re-issue  No.  S,(»7(),  and  of  .'^even  claims  in 
re-issue  No.  8,GS8,  and  of  three  claims  in  rc-issue  No.  8,089, 
there  being  thirty-eight  several  claims  thus  inquired  about. 
The  bill  prays  for  a  recovery  of  the  profits  and  damages  from 
the  said  unlawful  making,  using  and  selling,  by  the  defend- 
ants, of  the  said  "  im[)rovements  in  ventilators,  skylights,  sky- 
light turrets,  conservatories  and  other  glazed  structures  and 
ventilating  louvres.'" 

The  defendant  denuirs  to  the  whole  bill,  and  in  the  demur- 
rer shows,  for  cause  of  demurrer,  "that  it  a|)pears  by  the  said 
bill  that  it  is  exhibited  against  this  defendant  for  several  and 
distinct  matters  and  causes,  in  many  whereof,  as  appears  by 
said  bill,  the  defendant  is  not  in  any  manner  interested  or  con- 
cerned, and  which  said  several  matters  and  causes  are  distinct 
and  separate  one  from  the  other,  and  are  not  alleged  in  said 
bill  to  be  conjointly  infringed  by  said  defendant.  .  .  .  By 
reason  of  the  distinct  matters  therein  contained,  the  complain- 
ant's bill  is  drav.n  out  to  considerable  length,  and  the  defend- 
ant is  compelled  to  take  a  copy  of  the  whole  thereof,  and,  by 
joining  distinct  matters  together,  which  do  not  depend  on 
each  other,  in  the  said  bill,  the  pleadings,  orders  and  proceed- 
ings will,  in  the  progress  of  the  said  suit,  be  intricate  and  pro- 
lix, and  the  defendant  be  put  to  unnecessary  charges  in  taking 
copies  of  the  same."  The  defen(hint,  "  not  waiving  his  said 
demurrer,  but  relying  thereon,"  has  put  in,  simultaneously,  an 
answer  to  the  whole  bill. 

This  demurrer  does  not  use  the  word  "  multifarious."  A 
bill  is  multifarious  when  it  improperly  unites  in  one  bill, 
against  one  defendant,  several  matters  perfectly  distinct  and 
unconnected,  or  when  it  demands  several  matters  of  a  distinct 
and  independent  nature  against  several  defendants  in  the  same 
bill.  The  reason  for  the  first  case  is  that  the  defendant  would 
be  compelled  to  unite,  in  his  answer  and  defense,  different  mat- 
ters, wholly  unconnected  with  each  other,  and  thus  the  proofs 
applicable  to  each  would  be  apt  to  be  confounded  with  each 
other,  and  delays  would  be  occasioned  by  waiting  for  the  pi-oofs 
respecting  one  of  the  matters,  when  the  others  might  be  fully 
ripe  for  hearing.  The  reason  of  the  second  case  is,  that  each  de- 
fendant would  have  an  unnecessary  burden  of  costs  by  the 
statement  in  the  pleadings  of  the  several  claims  of  the  other 
defendants,  with  which  he  has  no  connection.  Story's  Eq.  PL, 
§  271.     The  demurrer  in  this  case  is  intended  to  be  a  demur- 


158  EQUITY    PLEADING. 

rer  for  misjoining  causes  of  suit  against  one  defendant.  Yet 
much  of  it  is  inapplicable  to  such  a  case,  and  is  taken  from  a 
form  which  applies  only  to  the  case  of  a  demurrer  by  one  of 
two  or  more  defendants  who  has  no  concern  with  causes  of  ac- 
tion stated  against  the  other  defendants,  such  a  demurrer  being 
really  a  demurrer  for  a  misjoinder  of  parties.  Story's  Eq.  PL, 
§  530,  and  note  3,  where  is  to  be  found  the  form  improperly 
used  in  this  case.  Yet  there  seems  to  be  enough  left,  after  re- 
jecting as  surplusage  the  improper  and  unnecessary  part,  to 
raise  the  point  intended.  The  demurrer,  in  regard  to  mis- 
joining  causes  of  suit  against  the  defendant,  substantially 
avers  that  the  bill  is  brought  for  several  matters  and  causes 
which  are  separate  and  distinct  one  from  the  other,  and  are 
not  alleged  to  be  conjointly  infringed  by  the  defendant.  This 
means  that  tlie  patents  sued  on  are  distinct  one  from  the  other, 
and  that  they  are  not  alleged  to  be  conjointly  infringed  in  any 
one  article  which  the  defendant  has  made  or  used  or  sold. 
This  averment  of  the  demurrer  is  true. 

Where  there  is  a  joinder  of  distinct  claims  between  the  same 
parties,  it  has  never  been  held,  as  a  general  proposition,  that 
they  cannot  be  united,  and  that  the  bill  is,  of  course,  de- 
murrable for  that  cause  alone.  Nor  is  there  any  positive,  in- 
flexil)le  rule  as  to  what,  in  the  sense  of  courts  of  equity, 
constitutes  a  fatal  multifariousness  on  demurrer.  A  sound 
discretion  is  always  exercised  in  determining  whether  the 
subject-matters  of  the  suit  are  properly  joined  or  not.  It  is  not 
very  easy,  a  priori,  to  say  exactly  what  is  or  what  ought  to  be 
the  true  line  regulating  the  course  of  pleading  on  this  point. 
All  that  can  be  done  in  each  particular  case  as  it  arises  is  to 
consider  whether  it  comes  nearer  to  the  class  of  decisions 
where  the  objection  is  held  to  be  fatal,  or  to  the  other  class 
where  it  is  held  not  to  be  fatal.  In  new  cases  the  court  is 
governed  by  those  analogies  which  seem  best  founded  in  gen- 
eral convenience,  and  will  best  promote  the  due  administra- 
tion of  justice,  without  multiplying  unnecessary  litigation  on 
the  one  hand,  or  drawing  suitors  into  needless  and  oppressive 
expenses  on  the  other.  Story's  Eq.  PI.,  §§  531,  539  ;  Horman 
Patent  Mfg.  Co.  v.  Brooklyn'City  R.  li.  Co.,  15  Blatch.,  444. 

We  are  not  without  cases  on  this  subject,  in  suits  on  patents 
in  this  country.  In  Nourse  v.  Allen,  4  Blatch.,  376,  in  1859, 
before  Mr.  Justice  Nelson,  a  bill  on  four  patents  was  held  good 
on  demurrer,  where  it  alleged  that  the  machine  used  contained 


IIAYKS    V.     DAYTON.  Ifj!) 

all  the  inii)rc)veinoiits  in  all  the  palt'iits.  'I'iio  coui-t  tlioii^lit 
that  the  convenience  of  both  })arties  as  well  as  a  saving-  oi"  ex- 
pense in  the  litigation  seemed  to  l)e  con^^ulted  in  embracing  all 
the  patents  in  one  suit  in  such  a  case  ;  and  that,  although  the 
defenses  as  respected  the  several  improvements  might  be 
different  and  unconnected,  yet  the  i)atents  wcrr  connected 
with  each  other  in  each  infringing  machine. 

In  Nellis  v.  McLanahan,  (i  Fish.  Pat.  Cas.,  28().  in  isTo, 
before  Judge  McKennan,  it  was  held  that  where  a  suit  in 
ecjuity  is  brought  for  the  infringement  of  .several  ])atents  for 
different  imj)rovements,  not  necessarily  embodied  in  the  con- 
struction and  operation  of  any  one  machine,  the  Ijill  nnist 
contain  an  explicit  averment  that  the  infrniging  machines 
contain  all  the  improvements  embraced  in  the  several  patents, 
or  it  will  be  held  bad  for  multifariousness  on  demurrer. 

In  Gillespie  r.  Cummings,  o.Saw.,  250,  in  J 874,  before  Judge 
Sawyer,  the  bill  was  founded  on  two  patents  for  the  manu- 
fticture  of  brooms.  There  was  a  demurrer  on  the  ground  of 
the  joinder  of  two  separate  and  distinct  cau.ses  of  action.  It 
a})pearing  by  the  bill  that  the  defendant's  broom,  in  inii-ing- 
ing,  nuist  be  an  infringement  of  both  of  the  patents,  and  that 
there  was,  therefore,  a  common  })oiiit  to  be  litigated,  and  much 
of  the  testimony  must,  from  the  nature  of  things,  be  a])pHcable 
to  both  of  the  })atents,  the  bill  was  held  good. 

In  Horman  Patent  Mfg.  Co.  v.  P>rookiyn  City  R.  R.  Co.,  15 
Blatch.,  444,  in  1879,  before  Judge  Benedict,  a  bill  in  equity 
on  two  patents  alleged  that  the  defendant  was  using  machines 
containing  in  one  and  the  same  apparatus  the  inventions  .se- 
cured by  each  of  the  two  patents.  It  was  demurred  to  oil  the 
ground  that  it  did  not  allege  that  the  devices  were  u.sed  con- 
jointly or  connected  together  in  any  one  a]>paratus,  but  the 
demurrer  was  overruled.  The  court  held  tlial,  as  the  bill  did 
not  show  the  controversy  to  be  of  such  a  chai-acter  that 
prejudice  to  the  defendant  would  result  from  the  joinder  in  one 
action  of  the  cau.ses  of  action  joined,  the  bill  must  be  sustained. 
The  court  was  of  opinion  that,  in  the  absence  of  any  other 
fact,  the  circumstance  that  the  two  transactions  complained  of 
were  the  use,  in  a  single  machine,  of  two  ])atented  devices 
connected  with  the  mechanism  of  the  machine,  warrant ed  the 
inference  that  no  prejudice  would  result  to  the  defendant  from 
the  joinder  of  the  two  transaction.s. 

The  decisions  above  cited  all  tend  in  one  direction.     The 


160  EQUITY    PLEADING. 

decision  in  Case  v.  Redfield,  4  McLean,  526,  if  limited,  as  it 
apparently  ought  to  be,  to  the  case  of  an  original  patent,  and 
of  another  patent  granted  in  terms  as  an  improvement  on  the 
original  patent,  is  not  like  the  present  case  as  shown  by  the 
bill.  It  is  a  case  difficult  to  understand,  and  if  it  were  like 
the  present  case  in  its  facts,  whatever  there  is  in  the  decision 
of  it  tending  to  sustain  the  bill  in  this  case  is  opposed  to  all 
the  other  cases  on  the  subject. 

The  present  case  appears  to  be  a  suit  on  thirty-eight  claims 
in  six  different  patents.  There  is  nothing  to  show  that  any 
two  or  more  of  the  patents  are  in  fact,  or  are  capable  of  being, 
used  in  making  a  single  structure,  much  less  that  the  defend- 
ant has  so  used  them.  So  far  as  the  bill  shows,  the  causes  of 
action  are  as  distinct  as  the  patents.  The  patents  are  not 
shown  to  be  connected  with  each  other  in  any  infringing 
machine,  or  to  be  used  at  the  same  time  in  any  infringing 
machine.  The  controversy  in  this  suit  appears,  from  the  bill, 
to  be  of  such  a  character  that  prejudice  will  result  to  the  de- 
fendant from  being  called  upon  to  defend  in  one  suit  against 
thirty-eight  claims  in  six  different  patents,  no  two  of  which 
claims,  so  far  as  the  bill  shows  to  the  contrary,  are  employed 
in  any  one  machine.  On  this  ground  the  bill  must  be  held 
bad. 

The  plaintiff  contends  that  the  putting  in  of  an  answer  to 
the  whole  bill  is  a  waiver  of  the  demurrer.  Rule  32  in  equity 
permits  a  demurrer  to  a  part  of  a  bill,  a  plea  to  a  part,  and  an 
answer  as  to  the  residue.  If,  impliedly,  that  rule  forbids  a 
demurrer  to  the  whole  bill,  and  at  the  same  time  an  answer 
to  the  whole  bill,  the  plaintiff's  remedy  is  by  moving  to  strike 
out  either  the  answer  or  the  demurrer,  or  to  compel  the  de- 
fendant to  elect  which  he  will  abide  by.  By  going  to  argu- 
ment on  the  demurrer  the  plaintiff  waives  the  benefit  of  the 
objection  now  taken,  if  otherwise  he  would  have  it.  More- 
over, rule  37  in  equity  provides  that  "  no  demurrer  or  plea 
shall  be  held  bad  and  overruled  upon  argument,  only  because 
the  answer  of  the  defendant  may  extend  to  some  part  of  the 
same  matter  as  may  be  covered  by  such  demurrer  or  plea." 
This  rule  was  first  made  in  March,  1842,  to  take  effect  August 
1,  1842.  17  Pet.,  Ixvii.  There  was  no  such  rule  in  the  prior 
rules  of  March,  1822  (7  Wheat.,  v),  although  rule  18  in  such 
prior  rules  was  the  same  as  the  above  present  rule  32.  Under 
the  rules   of  1822,  not  only  had  it  been  held   (Ferguson  v. 


ATWii.i.   V.    ki;i;i;ktt.  l(il 

O'llai'i'a,  IVt.  (".  (".,  4t);5)  that,  wliort'  tlicic  was  a  jilca  ,i;<>iii^  to 
the  whole  hill  an<l  also  an  answer  to  the  wluile  hill,  the  court 
would,  on  the  ])laintiirs  motion,  dis'allow  the  jilea,  on  the 
grouuil  of  its  being  overruled  hy  the  answer,  hut  Judge  Story 
had  held  in  1840,  in  Stearics  v.  Page,  1  Story,  204,  that  where  a 
jtlea  stated  a  ground  why  the  defendant  should  not  go  into  a 
full  defense,  and  yet  the  defendant  answered  putting  in  a  full 
defense,  it  would  be  held,  on  the  argument  of  the  plea,  that 
the  answer  overruled  the  })ka.  Then  rule  37  was  made.  It 
applies  to  the  present  case.  The  denuirier  is  allowed,  with 
costs. 

AT  WILL  r.  J'EREETT. 
(Circuit  Court  for  New  York  :  2  Blatchford,  39-49.      184G.) 

Statement  of  Facts. — "The  Bohemian  (Jirl,"  an  opera, 
was  reproduced  in  New  York  by  Atwill,  who  added  much 
ma.tfer  to  it,  interspersed  throughout  tlie  work.  He  made 
many  alterations,  changing  duetts  to  solos,  trios  to  duetts,  and 
publislied  and  caused  to  be  produced  in  New  York,  in  Decem- 
ber, 1844,  the  opera  thus  altered,  and,  as  he  alleges,  imj)roved, 
and  duly  copyrighted  the  same.  His  bill  charges  that  Ferrett 
&  Co.,  a  firm  composed  of  P^rrett  and  Arthur,  of  Philadel- 
phia, and  Galusha,  of  New  York,  infringed  his  copyiight,  and 
he  brought  an  action  at  law  in  New  York  against  Galusha,  the 
only  one  of  the  firm  residing  in  New  York,  and  files  tliis  bill 
for  a  discovery  from  him  and  his  partners,  which  di.scovery  he 
alleges  he  is  entitled  to,  and  without  which  ho  cannot  .safely 
try  the  cause. 

Opinion  by  Betts,  J. 

Three  separate  demurrers  are  filed  to  the  bill  in  this  case  by 
the  defendant  Galusha.  The  other  two  defendants  have  not 
entered  their  aj)pcarance,  and  it  does  not  appear  that  they 
have  been  served  with  the  subpoena. 

The  defendant  attempts  to  call  in  question  distinet  jiarts  of 
the  bill  by  severing  his  demurrers,  and  also  takes  objection  to 
the  whole  by  general  demurrer.  The  special  causes  of  demur- 
rer are  excepted  to  by  the  plaintiff  as  informal  and  insufiicient, 
in  not  pointing  out  precisely  the  parts  of  the  bill  intended  to 
be  embraced  by  them.  They  adopt  the  general  formulary, 
"that,  as  to  so  nnich  of  the  bill  as  seeks,"  etc.,  without  .speci- 
fying by  paragraph,  page  or  folio,  or  other  method  of  reference^ 
11 


162  EQUITY    PLEADING. 

\vhere  the  objectionable  matter  is  to  be  found.  We  think  this 
mode  of  demurring  to  the  statements  of  a  long  and  involved 
bill  is  too  obscure  and  indefinite  to  be  admissible.  Mitford's 
PI.,  214  ;  Robinson  v.  Thompson,  2  Ves.  &  B.,  118  ;  Weather- 
liead  V.  Blackburn,  id.,  121.  The  business  of  a  special  demur- 
rer is  to  point  out,  by  the  clearest  indications,  the  features  al- 
leged to  be  defective  in  the  pleading,  and  to  relieve  the  court 
from  the  labor  and  delay  incurred  by  repeated  searches  for  the 
parts  to  which  the  demurrer  may  apply.  Story's  Eq.  PI.,  §§ 
457-459  ;  Devonsher  v.  Newenham,  2  Schoales  &  Lefroy,  199, 
In  the  present  case  the  court  have  abridged  the  bill  paragraph 
by  paragraph,  and  in  tliat  way  have  been  enabled  to  select 
various  statements  which  were  undoubtedly  intended  to  be 
embraced  by  the  special  demurrers  ;  but  we  are  not  inclined 
to  sanction  so  loose  a  mode  of  pleading.  We  therefore  hold 
the  special  demurrers  to  be  informal  and  insufficient,  except 
in  respect  to  the  multifariousness  of  the  bill,  and  to  its  demand 
of  discoveries  involving  penalties  and  forfeitures  against  the 
defendant.  In  those  particulars  we  think  that  the  causes  of 
demurrer  assigned  designate,  with  sufficient  explicitness,  the 
parts  of  the  bill  to  which  they  are  intended  to  apply. 

(1)  The  bill  is  objected  to  as  multifarious  by  the  defendant 
Galusha,  on  the  ground  that  it  makes  charges  against  and 
exacts  answers  from  his  co-defendants  in  regard  to  matters  in- 
volved in  the  suit  at  law  commenced  against  him,  wliich  do 
not  concern  them,  they  not  being  parties  to  the  suit  at  law. 
But  the  matters  referred  to  concern  him,  and  he  cannot  make 
the  objection  of  irrelevancy  in  respect  to  his  co-defendants, 
more  especially  as  it  appears  on  the  face  of  the  bill  that  they 
re.side  out  of  the  jurisdiction  of  the  court.  Story's  Eq.  PI., 
§  544,  note  3.  Another  feature  of  the  bill  might  also  prob- 
ably rescue  it  from  this  objection,  inasmuch  as  it  charges  the 
acts  complained  of  to  have  been  committed  by  the  three  de- 
fendants as  partners  and  in  their  co-partnership  character, 
provided  they  are  all  connected  by  other  proper  allegations 
with  the  object  and  purpose  of  the  discovery  prayed  for. 
Mitford's  pi.,  182,  183.  The  demurrer  for  multifariousness  is 
overruled. 

(2)  It  is  an  incontrovertible  i)rinciple  of  equity  law  that  a 
defendant  cannot  be  compelled  to  make  discoveries  in  answer 
to  a  bill  which  seeks  to  enforce  penalties  and  forfeitures  againist 
him  by  means  of  such  discoveries.     Story's  Eq.    PL,  §  521, 


AT  WILL    V.    FERHETT.  1G3 

note  3,  and  §§  522,  575,  598  ;  Mitford's  PL,  104-197.  In  this 
case  the  bill  claims  a  forfeiture  under  section  7  of  the  act  of 
February  3,  1831  (4  U.  8.  Stat,  at  Large,  438),  of  the  i)lates 
and  pieces  of  nuisic  on  hand.  Had  the  forfeitui'e  been  waived 
by  the  plaintiff",  the  defendants  might  becomi)elled  to  disclose 
the  number  of  their  jmblications,  the  quantity  on  hand  and 
the  amount  realized  from  sales,  in  aid  of  the  recovery  of  dam- 
ages in  a  suit  at  law.  8o,  probably,  on  such  discovery  equity 
might  compel  the  defendants  to  deliver  up  to  the  plaintiffs  the 
forfeited  copies.  But  the  bill  is  clearly  faulty  in  directly  re- 
quiring the  defendants  to  convict  themselves  of  the  act  which 
carries  with  it  the  forfeiture  sued  for. 

The  decision  of  these  two  points  leaves  untouched,  however, 
the  principal  features  of  the  bill  which  are  supj)osed  to  be 
brought  in  question  by  the  demurrers,  and  to  the  discussion 
of  which  the  argument  A\as  mainly  directed  ;  and  it  therefore 
remains  to  be  considered  whether  advantage  can  be  taken  of 
those  matters  by  general  demurrer. 

The  objections  which  may  be  taken  on  general  demurrer 
are:  1.  That  the  plaintiff  sets  forth  no  title  in  himself  to  the 
subject-matter  of  his  alleged  copyright;  and  2.  That  the  bill 
lays  no  legal  foundation  for  the  discovery  sought. 

.  1.  The  insufficiency  of  the  plaintiff's  title  on  the  face  of  the 
bill  is  claimed  to  be  this  :  that  he  alleges  the  musical  com- 
position, or  considerable  portions  of  it,  to  have  been  arranged, 
adapted,  printed  and  published  by  or  for  him,  instead  of  aver- 
ring that  it  was  composed  by  himself.  The  })laintiff,  on  the 
other  hand,  contends  that,  even  admitting  this  to  be  so,  his 
title  is  complete  upon  the  legal  adage,  qui  facit  per  aliiini  facit 
per  se,  and  that  he  can  appropriate  as  his  own  the  alterations 
and  improvements  of  the  music  made  by  others  at  his  pro- 
curement and  for  him. 

The  act  of  congress  (4  U.  8.  Stat,  at  Large,  430,  §  1)  secures 
by  copyright  to  any  person  who  is  the  author  of  any  musical 
compositiou  the  exclusive  property  in  his  composition  for  a 
term  of  years.  The  statute  contains  a  more  detailed  descrip- 
tion of  the  subjects  of  copyright  than  is  given  in  the  English 
acts  of  8  Anne  and  54  George  3  (Godson  on  Pat.,  App.,  384 
and  422) ;  but  the  construction  given  to  those  acts  by  the 
English  courts  makes  them  include,  under  the  name  of  books, 
pieces  of  music,  etc.  So  that  our  system  has  no  broader 
operation  in  this  respect  than  the  English,  and  no  doul)t  a  just 


104  EQUITY    PLEADING, 

construction  of  both  statutes  will  render  their  provisions  con- 
current. The  counsel  for  the  plaintiff  insists  that  the  doctrine 
of  the  l']nglish  law  enables  a  man  to  secure  to  himself  as  his 
own  composition  whatever  he  has  had  prepared  for  him  by  the 
labors  of  others.  We  think,  however,  that  the  cases  of  Tonson 
V.  Walker,  3  Swanst.,  672,  680  ;  Nicoll  v.  Stockdale,  id.,  687  ; 
Gary  v.  Longman,  3  Esp.,  273,  274,  and  Mawmann  v.  Tegg, 
2  Russ.,  385,  rest  upon  wholly  different  principles.  They 
recognize  the  right  of  authorship,  although  the  mafcrials  of  the 
cora[>osition  were  procured  by  another,  and  also  an  equitable 
title  in  one  person  to  the  labors  of  another  when  the  relations 
of  the  parties  are  such  that  the  former  is  entitled  to  an  assign- 
ment ol'  tlie  [)roduction.  But,  to  constitute  one  an  author,  he 
must,  by  Ids  own  intellectual  labor  applied  to  the  materials  of 
his  composition,  produce  an  arrangement  or  compilation  new 
in  itself  Gray  v.  Russell,  1  Story,  11.  And  the  rules  of  the 
common  law  and  of  equity  are  the  same  upon  this  subject. 
Gary  v.  Longman,  1  East,  358  ;  Say  re  v.  Moore,  id.,  301,  note  ; 
Jeremy's  Eq.,  322.  The  title  to  road-books,  maps,  etc.,  rests 
upon  this  principle  (2  Story's  Eq.  Jur.,  §  940) ;  and  the  cases 
cited  bv  the  plaintiff's  counsel  have  relation  to  new  produc- 
tions ai'ranged  or  conjpiled  from  materials  before  known  or 
obtained  by  others  for  the  author,  and  not  to  the  appro]:)ria- 
tion  by  copyright  of  those  materials  in  the  same  state  in  which 
they  are  furnished. 

If,  therefore,  the  plaintif1''s  title  rested  only  upon  the  alle- 
gation referred  to,  we  should  hold  the  bill  to  be  defective  on 
general  demurrer.  But  we  find  repeated  averments  in  the  bill 
to  the  effect  that  "  he  made  many  alterations  of  and  additions 
to  the  said  music  " — that  "  he  added  new  matters  of  his  own, 
not  in  the  original  opera" — that  he  affixed  a  copy  of  the 
record  on  the  title-page  "•  of  each  piece  of  nnisic  composed, 
arranged  and  adapted  by  him  for  publication" — and  that  a 
copyright  was  taken  out  for  sucli  pieces  "  as  arranged,  ada])ted 
and  published  by  the  plaintiff,  with  the  new  titles  and  orig- 
inal matter  introduced  therein  by  him,"  whereby  he  became 
entitled  to  vend  the  music  "  as  arranged  and  adapted  by  him, 
and  to  the  original  matter  introduced  by  him  therein  ;  "  and 
the  bill  charges  the  defendants  with  having  sold  such  music 
"  printed  from  and  in  exact  imitation  of  the  music  so  arranged 
and  adapted  and  published  by  the  plaintiff,  with  the  original 
matter  introduced  tlierein  by  him,  and  witli  his  titles  to  some 


ATwiLi,   V.    ki:ki{i:tt.  KJo 

of  such  pieces  of  nuisie."  'I'hese  alleiiiitions  aiiiouiit  (o  an 
assertion  of  authorship  in  terms  sufficiently  explicit  and  full 
to  constitute  a  pei'fect  title  at  law, /and,  the  facts  beinu'  ad- 
mitted by  the  demurrer,  we  must  hold  the  right  of  the  j»laintill 
established  upon  these  averments,  notwithstanding  tlieir  de- 
fectiveness and  their  inconsistency  with  t)thers  contained  in 
the  bill.  Mitford's  PI.,  212.  Such  imperfect  pleading  is 
matter  of  form  and  can  be  taken  advantage  of  only  by  special 
demurrer.  'J'he  general  demurrer  in  this  behalf,  must,  there- 
fore, be  overruled.  Veri)lank  r.  ("aines,  1  Johns.  Ch.,  57  ; 
Higinbotham  v.  Ikirnet,  5  id.,  184  ;  Kuypers  v.  The  Reformed 
Dutch  Church,  6  Paige,  570. 

2.  The  discovery  prayed  for  is  to  aid  the  plaintiff  in  his  suit  at 
law  prosecuted  against  the  defendant  Galusha,  and  the  aver- 
ment in  the  bill  is  that  he  has  commenced  an  action  oi'  (respafts 
against  that  defendant  for  the  violation  of  his  co})yright.  The 
demurrer  raises  the  question  whether  the  bill  alleges  such  a 
suit  at  law  as  will  aflbrd  foundation  for  the  discovery  sought, 
no  relief  consequent  on  the  discovery  being  prayed  for.  It  is 
clear  that  the  plaintiff  has  adopted  a  form  of  action  at  law 
which  cannot  be  supported.  The  English  statute  of  54  George 
3,  section  2,  gives  specifically  an  action  on  the  case  as  the  rem- 
edy for  the  violation  of  a  co})yright.  Our  act  (4  IT.  8.  Stat,  at 
Large,  438)  only  indicates  the  form  of  action  wlien  a  maiui- 
script  is  published  without  the  consent  of  the  author  (§  U),  or 
when  a  suit  is  brought  to  recover  the  pecuniary  penalty  given 
b}'  the  sixth  section.  On  general  principles  of  law,  however, 
it  is  clear  that  trespass  cannot  be  brought  for  an  injury  merely 
consequential  in  its  character,  unaccom})anied  by  force  as 
against  tlie  person  or  property,  or  by  wi'ongful  intermeddling 
with  the  possession  of  pro}>erty.  1  Chitty's  PI.,  ^'2(^.  127. 
The  act  of  8  Anne,  chaj)ter  19,  did  not  designate  the  form  of 
action,  yet  no  doubt  was  ever  expressed  that  case  was  the 
appropriate  one.  lieckford  i\  Hood.  7  T.  R.,  ()1()  ;  Oary  v. 
Longman,  1  P]ast,  358;   Roworth  r.  Wilkes,  1  Campb.,  *,)4. 

To  obtain  a  discovery  in  aid  of  a  suit  at  law  thi'  bill  must 
show  it  to  be  necessary  for  the  plaintiff,  and  that,  when  made, 
it  can  be  used  to  his  advantage.  Jeremy's  Kq.,  IGI  ;  Story's 
Eq.  PI.,  §§  3P.»,  321.  It  necessarily  follows,  from  these  prin- 
ciples, that  a  discovery  will  not  be  decreed  in  aid  of  an  action 
at  law,  where  it  is  manifest  that  the  plaintiff  cannot  avail 
himself  of  it  in  the  suit  he  is  attemj)ting  to  prosecute.      It  is. 


166  EQUITY    PLEADING. 

perhaps,  also  to  be  regarded  as  a  substantive  defect  in  the  bill 
that  it  seeks  a  discovery  from  three  defendants  to  aid  a  suit 
instituted  against  one  alone.  In  so  fer,  then,  as  the  mainte- 
nance of  the  bill  depends  upon  the  plaintiff's  right  to  a  dis- 
covery, we  think  it  defective  in  substance,  and  bad  on  general 
demurrer. 

This  bill,  however,  prays  for  an  injunction,  and,  making 
title  on  its  face  in  the  plaintiff  to  the  copyright  set  forth,  and 
showing  a  wrongful  and  wilful  violation  of  the  copyright  by 
the  defendants,  and  serious  injuries  inflicted  by  and  appre- 
hended from  such  violation,  it  is  sufficient  in  substance  and 
form  to  entitle  the  plaintiff  to  an  injunction.  This  relief  is 
not  dependent  upon  the  discovery  prayed,  but  rests  on  the 
equities  set  forth  in  the  bill,  and  may  be  refused  or  granted  ir- 
respective of  the  discovery.  A  general  demurrer  to  the  whole 
bill  takes  exception,  therefore,  to  this  branch  of  it,  and 
the  principle  of  equity  pleading  is  universal  that  a  general 
denmrrer  to  the  whole  bill  must  be  overruled  if  any  indepen- 
dent part  of  the  bill  is  sufficient.  Higinbotham  v.  Burnet,  5 
Johns.  Ch.  R.,  184  ;  Kuypers  v.  The  Reformed  Dutch  Church, 
6  Paige,  570  ;  Story's  Eq.  PL,  §  443.  The  formal  protestation 
accompanying  the  demurrer  is  of  no  avail  to  protect  it  against 
this  defect,  as  it  cannot  serve  the  purpose  of  a  plea  or  answer, 
or  form  an  excuse  for  not  putting  in  the  one  or  the  other. 
Story's  Eq.  PI.,  §§452,  457,  458.  We  think,  therefore,  that  the 
general  demurrer  must  be  overruled  on  both  points. 

As  faults  in  pleading  have  occurred  on  both  sides,  each 
party  may  amend  without  paying  costs  to  the  other. 

BRANDON  MANUFACTURING  COMPANY  v.  PRIME. 

(Circuit  Court  for  New  York  :  14  Blatchford,  371-375.      1878.) 

Opinion  by  Wheeler,  J. 

Statement  of  Facts. — This  cause  has  been  heard  on  the 
several  demurrer  of  defendant  Strong,  and  joint  demurrer 
of  defendants  Prime,  Meacham  and  Luce  to  the  cross-bill. 
The  causes  of  demurrer  assigned  are  the  same  in  each.  They 
are,  in  substance,  that  this  court  has  not  jurisdiction,  because 
the  court  of  chancery  of  the  state  had  acquired  prior  jurisdic- 
tion on  a  bill  brought  by  the  orator  in  the  cross-bill,  there,  for 
the  same  relief;  that  some  of  the  relief  prayed  is  not  cogniz- 
able in  equity  ;  that  some  of  the  subjects  of  the  cross-bill  are 


BRANDON    MANUFACTURING    COMPANY    V.    IMUMK.  1 G7 

not  the  same  as  those  of  the  original  hill  ;  and  that  Strong 
and  another,  made  parties  to  the  cross-bill,  were  not  parties 
to  the  original  bill.     Jiotli  are  demurrers  to  the  whole  bill. 

The  orators  in  the  original  bill  commenced  the  litigation 
involved  in  this  court,  and  compelled  the  oraior  in  the  cross- 
bill to  come  here  and  join  in  it.  Having  brought  it  here, 
they  have  no  right  to  say  that  the  whole  or  any  part  of  it  bo- 
longs  anywhere  else.  If  the  cross-bill  is  appropriate  to  the 
original,  it  must  relate  to  the  subjects  of  it  and  embrace  a 
part,  at  least,  of  the  litigation  introduced  by  it,  so  that  by 
filing  the  cross-bill  the  orator  in  that  has  merely  met  those  in 
the  original  where  called  upon  by  them  to  meet  them.  For 
this  reason  a  plea  of  jurisdiction  in  another  court  is  not  a  good 
plea  to  a  cross-bill.  2  Dan.  Ch.  Vv.  (4th  Am.  ed.),  636  ;  Wel- 
ford's  Eq.  PI.,  229  ;  Ld.  Newburg  /;.  Wren,  1  Vern.,  220. 
And  for  the  same  reason  it  is  not  necessary  to  show,  in  a 
proper  cross-bill,  that  the  relief  sought  Ijy  it  is  cognizable  in 
equity.     Story's  Eq.  PI.,  §  399. 

It  has  not  been  claimed  in  argument,  and  could  not  suc- 
cessfully be  claimed,  but  that  this  cross-bill  relates  to  the  sub- 
ject of  the  original  in  some  respects,  nor  but  that  some  of  the 
relief  prayed  in  the  cro.ss-bill  is  properly  prayed.  And  it 
follows  that  some  of  it  is  proper  to  be  answered,  in  some  form,  by 
some  of  the  parties  ;  and  that  some  of  it  may  not  be  is  no  good! 
reason  for  not  answering  what  should  be  answered.  As  the 
demurrers  are  to  the  whole,  and  a  part  clearly  should  be  ans- 
wered, and  the  demurrers  must  be  overruled  or  sustained  as. 
a  whole,  as  to  the  causes  relating  to  jurisdiction  and  relief, 
they  must  be  overruled. 

So  far  as  the  defendants  Prime,  Meacham  and  Luce  are  con- 
cerned, it  would  be  sufficient  to  say,  as  to  the  other  causes  of 
demurrer,  that,  because  other  parties  are  improperly  called 
upon  to  answer  the  cross-bill  in  this  form,  it  is  no  good  reason 
why  they,  who  are  proj)erly  called  upon  to  answer  it,  should 
not  do  so.  But  if  the  others  are  properly  called  upon  to 
answer  it,  a  fortiori,  they  are  and  should  answer  it. 

The  question  hereupon  is  merely  whether  the  cross-bill 
should  be  answered  at-  all  or  not  by  these  other  ])arties.  That 
depends,  of  course,  u})on  whether  the  subjects  of  it  are  so  pre- 
sented here  by  it  that  they  are  properly  called  upon  to  answer 
it  in  the  form  in  which  they  are  presented.  The  original  bill 
sets  forth,  in  substance,  that  the  orators  in  that  have  a  patent 


1G8  EQUITY    PLEADING. 

that  the  orator  in  tlie  c-ross-bill  is  iiifringiiio-,  and  prays  ajDpro- 
priate  relief.  The  cross-bill  sets  forth  that  the  defendant 
Strong  had  the  record  title  to  the  patent,  and  the  orator  the 
equitable  title  to  it,  and  that  the  orators  in  the  original  bill 
acquired  Strong's  title  with  notice  of  the  outstanding  equity, 
and  were  endeavoring  to  assert  it  against  the  equitable  title, 
and  [)rays  restraint  and  a  conveyance.  It  is  unquestionably  the 
proper  office  of  a  cross-bill  to  afford  relief  in  such  a  case  if  the 
case  is  made  out.  Story,  Eq.  PI..  §  301  ;  Calverley  v.  Wil- 
liams, 1  Ves.  Jr.,  210.  A  cross-bill  is  like  an  original  bill, 
except  that  it  must  rest  on  what  is  necessary  to  the  defense  of 
an  original  l)ill.  In  an  original  bill,  brought  by  the  orator  in 
the  cross-bill  for  the  same  relief,  there  could  be  no  fair  question 
but  that  these  new  parties,  of  whom  Strong  is  one,  would  be 
proper  parties.  In  this  original  bill,  as  it  is  framed,  these  do 
not  appear  to  be  necessary  parties,  but  when  the  facts  set  up  in 
the  cros.s-bill  appear  they  become  so.  Following  the  ordinary 
rule,  when  the  orator  in  the  cross-bill  resorts  to  it  for  defense 
and  relief,  and  makes  it  appear  that  they  are  not  only  proper 
but  necessary  parties  to  the  litigation,  that  orator  not  only 
might,  but  ought,  to  make  them  parties.  If  there  were  no 
authorities  and  was  no  practice  on  the  subject,  on  principle 
that  would  seem  to  be  the  proper  course.  That  the  practice 
in  this  state,  which  professes  to  follow  the  English  chancery 
practice,  the  same  that  is  followed  in  this  court  would  warrant 
making  him  a  party,  is  well  known  and  aj)pears  in  the  state 
reports.  Blodgett  v.  Hobart,  18  Yt.,  414.  It  does  not  appear 
expressly  from  such  English  reports  or  text-books  as  have 
been  examined  what  the  actual  practice  in  such  cases  there 
has  been.  In  this  country,  in  Curd  v.  Lewis,  1  Dana,  351.  a. 
decree  was  reversed  for  the  reason  that  an  assignor  of  the  sub- 
ject of  litigation  in  an  original  and  cross-bill  was  not  a  ])arty 
to  either,  and  should  have  been  made  a  party  to  the  cross-bill, 
and  that  he  might  be  made  such  a  party.  Wickliffe  v.  Cla}^, 
id.,  585,  was  heard  by  consent  only,  without  making  a  party, 
that  by  the  cross-bill  appeared  necessary,  a  new  party  by  the 
cross-bill.  In  Sharp  v.  Pike,  5  B.  Mon.,  155,  a  new  party  was 
added  by  cross-bill  against  his  own  express  objection.  In 
Walker  v.  Brungard,  13  S.  &  M.,  723,  new  parties  were  added 
and  new  matters  brought  in  by  cross-bill  and  heard  without 
objection.  In  dispo.sing  of  the  case,  the  chancellor,  delivering 
the  opinion  of  the  court,  .said  that,  if  they  had  been  objected 


BAII.KY    V.     WIMdIIT.  1  (")'.> 

to,  the  iK'W  niatk'i's  would  all  have  Ik-cii  kcjit  out,  witliDUt  say- 
ing that  the  now  {)artio.s  uoiikl  hav(>  hern.  In  Colters  r.  Hank 
of  Georgia,  24  Ala.,  37,  it  was  ('N])ressJy  hchl  that  new  jjartics 
should  be  added  hy  ei'dss-hill,  when  so  intercslcd  in  the  litiga- 
tion involved  by  it  as  to  l)e  proper  i)arties  to  it. 

Opposed  to  all  this,  there  is  the  remark  ol"  Mr.  .lustiei^  Cur- 
tis in  Shields  /'.  Harrow,  17  How.,  130,  and  tlir  reasons  given 
by  him  in  support  of  it,  to  the  effect  that  new  parties  cannot 
in  any  case  properly  be  added  by  cross-bill,  without  citing  any 
anthority  for  it.  and  books  and  cases  that  have  followed  that 
remark  without  citing  any  other  authority.  That  i)reci.se  <jues- 
tion  was  not  involved  in  that  case,  but  the  mere  dictum  of  such 
a  judge  of  such  a  court  would  ordinarily  be  followed,  especially 
by  lower  courts.  An  examination  of  his  reasoning  shows  that 
he  made  the  suggestion  without  much  examination,  [)rol)al)ly, 
and  his  reasoning  does  not  cover  the  whole  ground  as  to  all 
cla.sses  ot  cases.  The  modes  of  procedure  he  suggests  would 
probably  be  ample  in  all  cases  of  cros.s-bills  brought  for  dis- 
cover}' in  aid  of  a  defense  merely  to  the  origi-nal  bill,  but  not 
in  cases  of  those  brought  for  relief  as  well  as  defense,  where 
new  parties  would  be  necessary  to  the  relief  sought.  As  in 
this  case,  the  methods  he  states  as  the  proper  ones,  if  success- 
fully followed,  would  enable  the  defendant  in  the  original  bill 
to  defeat  the  orator  therein,  but  not  to  reach  the  affirmative 
relief  prayed  in  the  cro.ss-bill,  if  entitled  to  it.  Weighty  as 
that  remark  is,  it  is  not  thought  to  be  sufficient  to  control  the 
reasons  and  .uitliority  to  the  contrary  of  it.  The  result  of 
what  is  thouglit  to  be  the  soinidest  reasoning  and  the  best  con- 
sidered authorities  is  that,  where  a  cro.ss-bill  shows  that  tiiere 
is  a  party  to  the  subjects  of  the  litigation  as  presented  by  it, 
who  has  not  before  been  made  a  party  nor  appefired  to  ])e  a 
necessary  one,  and  then  does  api)ear  to  Ije  such,  that  i)arty 
should  be  brought  in  by  the  cross-bill. 

The  result  is  that  this  cro.ss-bill  should  be  answered  l)y  all 
those  made  defendants  to  it.  The  demurrers  are  overruled, 
and  it  is  thereupon  ordered  that  the  defendants  to  the  cro.ss-bill 
answer  over. 

r.AILEY  r.  WKIOIIT. 
(Circuit  Couit  for  Ohio  :  2  Bond,  181-183.     1868.) 

Opinion  of  the  Court. 

Statement  of  Facts. — The  bill  in  this  ca.se  alleges,  in  .sub- 
stance, that  upon  certain  fal.se  and  fraudulent  representations 


170  EQUITY    PLEADING. 

by  the  defendants  the  comphiinant  was  induced  to  make  an 
advance  to  them  of  $20,000,  to  be  invested  in  the  purchase  of 
cotton  for  the  benefit  of  all  the  parties.  It  is  averred,  also, 
that  as  an  inducement  for  making  said  advance,  and  an  in- 
demnity therefor,  the  defendant  Wright  represented  himself 
as  the  owner  of  valuable  real  estate  in  Cincinnati,  which  he 
promised  to  mortgage  to  the  complainant  to  secure  him  against 
loss  for  said  advance  in  money.  The  bill  contains  direct 
allegations  of  fraud  on  the  part  of  defendants,  prays  for  an 
account,  and  for  a  decree  requiring  the  defendant  Wright  to 
execute  a  mortgage  on  the  real  estate  in  Cincinnati,  according 
to  his  promise. 

The  defendant  Wright  has  filed  a  plea  to  the  bill,  denying, 
all  the  allegations  of  fraud,  and  averring,  as  to  the  averment 
of  the  bill  that  he  promised  to  execute  a  mortgage  of  real 
estate,  that  if  any  such  promise  was  made  it  was  verbal,  and 
therefore  void  under  the  statute  of  frauds. 

The  pending  motion  in  the  case  is  for  an  order  to  withdraw 
the  plea  from  the  files,  and  to  require  an  answer  to  the  merits. 
The  only  question  intended  to  be  presented  on  this  motion  is 
whether,  under  the  allegations  of  the  bill,  the  defendant 
Wright  can  rely  on  his  averment  that  the  promise  to  execute 
the  mortgage  was  void  under  the  statute  of  frauds,  without  an 
answ^er  in  response  to  the  charges  of  fraud  in  obtaining  the 
advances  of  money  by  the  complainant. 

The  defendant  has  an  undoubted  right  to  set  up  that  the 
agreement  to  mortgage  was  by  parol,  and  therefore  void.  But 
the  law^  seems  now  to  be  well  settled,  that  where  facts  are  as- 
serted in  a  bill,  the  effect  of  which  may  be  to  take  a  verbal 
agreement  out  of  the  operation  of  the  statute  of  frauds,  it  is 
incumbent  on  the  respondent  to  respond  by  answer  to  such 
facts.  This  would  seem  to  be  the  fair  construction  of  the  thirty- 
second  rule  of  the  rules  of  practice  in  chancery,  adopted  by 
the  supreme  court  for  the  guidance  of  the  courts  of  the  United 
States.  And  such  seems  to  be  the  law  applicable  to  the  ques- 
tion as  laid  down  by  Judge  Story.     Story's  Eq.  Plead.,  591. 

It  is  clear  that  a  plea  merely  setting  up  the  invalidity  of  an 
agreement  under  the  statute  of  frauds,  where  other  facts  are 
averred  in  the  bill  in  support  of  the  complainant's  equity, 
and  which  may  be  of  a  character  to  require  a  court  to  ignore 
the  plea  of  the  statute,  the  defendant  should  be  required  to 
file  his  answer  to  such  facts.     Such,  it  seems  to  the  court,  is  in 


VAN    REIMSDYK    V.    KANE.  171 

accordance  with  the  spirit  and  design  of  the  thirty-second  rule 
before  referred  to.  And  without  deeming  it  necessary,  in  de- 
ciding the  present  motion,  to  refer  to  /the  frauds  alleged  in 
the  bill,  and  without  intimating  any  opinion  upon  the  question 
whether,  if  the  frauds  charged  were  ])roved,  the  legal  effect 
would  be  to  supersede  the  plea  of  the  statute  of  frauds,  and 
present  the  entire  transaction  for  inquiry  on  the  broad  prin- 
ciples of  equity,  an  order  will  be  entered  requiring  the  de- 
fendants to  file  their  answer  to  the  bill.  There  can  be  no 
hardship  in  such  an  order.  The  defendants  should  gladly 
avail  themselves  of  the  opportunity  of  denying  the  frauds 
charged.  I  trust  they  will  be  able  to  acquit  themselves  of  all 
imputations  impugning  their  integrity  in  the  transactions  set 
out  in  the  bill. 

VAN  REIMSDYK  v.  KAKE. 
(Circuit  (  ourt  for  Ehode  Island  :  1  Gallison,  371-386.     1812. ) 

Statement  of  Facts. — Bill  in  equity,  tiled  to  charge  the 
estate  of  a  deceased  partner  with  the  payment  of  a  ])artnership 
debt,  contracted  by  the  agent  of  the  firm,  who  drew  a  bill  of 
exchange  at  Batavia  on  a  firm  in  Amsterdam  for  the  account 
of  the  owners  of  the  ship  Patterson,  who  were  Clarke,  the 
deceased,  and  the  firm  of  Monroe,  Snow  &  Monroe,  of  which 
firm  Benjamin  Monroe,  who  was  the  drawer  of  the  bill,  was  a 
member.  The  bill  charged  that  the  firm  of  Monroe,  Snow  & 
Monroe  was  insolvent  and  had  been  discharged  under  the 
insolvent  laws  of  Rhode  Island  ;  that  Clarke  was  dead,  leaving 
assets  sufficient  to  pay  the  debt.  The  answer  admitted  that 
the  proceeds  of  the  bill  passed  to  the  use  of  the  owners  of  the 
ship.  It  denied  the  agency  of  the  drawer  of  the  bill,  and 
insisted  that  Monroe,  Snow  &  Monroe  were  liable  for  the  debt 
notwithstanding  the  discharge,  and  were  now  able  to  pay  it. 
The  deposition  of  the  drawer  of  the  bill,  Benjamin  Monroe, 
was  ruled  out  as  incompetent,  and  objection  was  taken  to  the 
bill  for  the  want  of  proper  parties. 

Opinion  by  Story,  J. 

The  first  question  .seems  to  be,  whether  the  discharge  of  the 
firm  of  Monroe,  Snow  &  Monroe  under  the  insolvent  act  of 
Rhode  Island  is  a  complete  discharge  of  them  from  this  debt. 
The  language  of  the  insolvent  act  itself  (1756)  is,  that  a  dis- 
charge under  it -shall  be  a  perfect  discharge  "of  and  from  all 


172  KQUITY    I'LKADISO. 

debts,  duties,  coiitnicts  and  deiiuuids  of  every  nature  and  kind 
whatsoever  that  shall  be  at  that  time  outstanding  against  the 
debtor,  debts  due  to  the  crown  itself  only  excepted."  And 
section  6  provides  that  every  creditor  who  shall  not  prove  his 
debt  before  the  commissioners  within  the  time  limited  by  the 
act  sliall  not  be  entitled  to  have  any  action  or  suit  therefor 
"  at  any  court  within  this  colony,"  "  and  that  this  act  being 
pleaded  in  bar,  shall  be  sufficient  to  bar  the  same."  By  an 
act  of  the  legislature  of  Rhode  Island,  the  full  benefit  of  this 
act  was  allowed  to  the  firm  of  Monroe,  Snow  &  Monroe,  and 
the  only  exception  was  of  debts  due  to  the  state.  It  is  ad- 
mitted on  all  sides  that  Monroe,  Snow  &  Monroe  have  been 
duly  discharged  under  the  act  from  all  debts  upon  which  it 
can  of)erate  as  a  bar. 

But  admitting  the  right  to  exist  and  to  be  exercised  in  the 
fullest  extent,  it  will  deserve  further  consideration  whether  the 
courts  of  the  United  States  are  bound  to  enforce  against  for- 
eigners or  citizens  of  other  states,  rightfully  suing  therein,  the 
full  effect  of  a  bar  of  this  nature. 

It  is  true  tliat  the  judiciary  act  of  24th  September,  17S9,  ch. 
20,  sec.  34,  has  provided  tliat,  except  where  the  constitution, 
treaties  or  statutes  of  the  United  States  shall  otherwise  pro- 
vide, the  laws  of  the  several  states  shall  be  regarded  as  rules 
of  decision  in  trials  at  common  iaw  in  the  courts  of  the  United 
States  in  cases  where  they  apply.  But  the  laws  of  the  states 
are  to  be  regarded  only  as  rn.les  of  decision,  and  not  as  exclusive 
or  peremptory  injunctions.  ]f  a  state  were  to  declare  that  no 
action  should  lie  u})on  a  contract  entei'ed  into  by  a  citizen 
thereof  with  a  foreigner  or  a  citizen  of  another  state,  under 
any  circumstances  whatsoever;  or  if  a  state  were  to  declare 
that  interest  reserved  upon  such  a  contract,  if  good  according 
to  the  law  of  the  place  of  that  contract,  should  be  void,  it 
would,  I  think,  be  difficult  to  admit  that  such  laws  would  be 
of  paramount  authority  in  the  courts  of  the  United  States.  A 
more  striking  case  would  be  a  policy  of  insurance,  on  which 
the  right  of  recovery  should  be  perfect  by  the  law  of  the  state 
where  it  was  made,  upon  the  merits,  and  yet  which,  by  the 
law  of  the  state  where  the  suit  was  brought,  would  be  void,  or 
receive  a  different  construction  from  local  ordinances.  There 
must  then  be  some  limitation  to  the  operation  of  this  clause, 
and  I  apprehend  such  a  limitation  mu.st  arise  whenever  the 
subject-matter  of  the  suit  is  extra-territorial.    "In  controversies 


VAN     IIKI.MSDYK     V.     KANK.  1  /  li 

between  eiti/eiis  ol'  a  state,  as  to  rights  deriveiJ  iiiider  that 
state,  and  in  eontroversies  respecting  territorial  interests,  in 
wliieli,  by  the  biw  of  nations,  tlie  U.r  'rc'i  sitir  governs,  there 
ean  be  little  doubt  that  the  regnlations  oi"  the  statute  must 
ajiply.  I>ut  in  controversies  alTecting  citizens  of  other  states, 
and  in  no  degree  arising  from  local  regulations,  as  for  instance 
foreign  contracts  of  a  commercial  nature,  I  think  that  it  can 
hardly  be  maintained  that  the  laws  of  a  state  to  which  they 
have  no  reference,  however  narrow,  injudicious  and  inconve- 
nient they  may  be,  are  to  be  the  exclusive  guides  for  judicial 
decision.  Such  a  construction  would  defeat  nearly  all  the  ob- 
jects for  wliich  the  constitution   has  pi-ovided  a  national  court. 

But  it  is  contended  that  whether  the  dischai'gc  of  Monroe, 
Snow  &  Monroe  be  or  be  not  a  complete  bai',  they  and  their 
assignees  ought  to  have  been  made  parties  to  the  j^resent  suit. 
Let  us  consider  tliis  point.  It  is  a  general  rule,  that  every 
person  interested  in  the  subject-matter  should  be  made  a  partv 
to  the  bill.  Mitf.  ri.  Ch.,  145;  Coop.  PI.  Ch.,  33.  Therefore, 
where  there  is  a  joint,  or  joint  and  several  contract,  it  is  laid 
down  that  the  plaintiff  must  bring  each  of  the  debtors  before 
the  court.  The  reasons  assigned  for  the  rule  are,  that  the 
debtors  are  entitled  to  the  assistance  of  each  other  in  taking 
the  account,  and  to  mutual  conti'ibution  upon  excess  of  pay- 
ment beyond  their  respective  shares.  J>ut  where  the  reasons 
cease,  the  rule  ceases  also,  and  therefore,  if  the  demand  be  ad- 
mitted, and  there  can  be  no  effectual  contribution  from  the 
other  ])arties,  it  is  not  allowed  to  prevail  (Madox  v.  Jackson,  3 
Atk.,  40C))  ;  and  in  cases  of  joint  and  several  contracts,  the 
rule  itself  has  not  stood  without  conti-adiction.  Collins  v. 
Griffith,  2  P.  Will.,  313  ;  S.  C,  2  Eq.  Abr.,  LS8,  pi.  2.  The 
rule  has  been  relaxed  where  the  })arties  before  the  court  were 
the  only  solvent  j^ersons,  and  admitted  the  debt  (3  Atk.,  400; 
2  Dick.,  738) ;  where  the  absent  party  was  beyond  the  process 
of  the  court  (Pre.  Ch.,  83  ;  Darwent  V.  Walton,  2  Atk.,  510) ; 
and  where  he  stood  in  the  situation  of  a  mere  surety  (3  Atk., 
40G)  ;  though  it  njigiit  be  otherwi.se,  if  he  wei'e  a  co-surety. 
Angerstein  v.  Clark,  2  Dickens,  738. 

It  is  also  a  general  rule,  operating  by  way  of  exception  on 
the  former,  that  no  one  need  be  made  a  party,  against  whom, 
if  brouglit  to  a  hearing,  the  jjlaintiff  can  have  no  decree. 
Therefore,  on  a  bill  by  creditors  or  jiurcha.sers  against  tlie 
assignees  of  a  bankru})t,  it  seeii}«!  now  settled  that  the  bank- 


174  EQUITY    PLEADING. 

rupt  himself  need  not  be  made  a  party,  though  it  was  formerly 
otherwise.  2  Vern.,  32  ;  3  P.  Will,  311,  note  I;  Collet  v. 
Wollaston,  3  Bro.  Rep.,  228. 

Let  us  now  apply  these  rules  to  the  present  case.  The  bill 
is  brought  to  charge  the  executors  of  a  deceased  partner,  hav- 
ing assets,  with  a  joint  debt,  which  at  law  survived  against 
the  firm  of  Monroe,  Snow  &  Monroe.  The  ground  of  equitable 
interference  is,  that  the  surviving  partners  are  certificated 
insolvents  ;  and  whatever  may  have  been  the  doubts  as  to 
this  branch  of  chancery  jurisdiction  in  former  times,  it  has 
been  gradually  settled,  and  is  now  placed  beyond  all  con- 
troversy. Lane  v.  William.?,  2  Vern.,  242  ;  Heath  v.  Perceval, 
1  P.  W.,  682  ;  Simpson  v.  Vaughan,  2  Atk.,  31  ;  Bishop  v. 
Church,  2  Ves.,  101,  371;  Daniel  v.  Cross,  3  Ves.  Jr.,  277; 
Thomas  v.  Frazer,  3  Ves.  Jr.,  399;  Burn  v.  Burn,  3  Ves.  Jr., 
573  ;  Stephenson  v.  Chi.swell.  3  Ves.  Jr.,  566. 

In  cases  where  a  suit  is  brought  against  executors  on  other 
grounds,  it  seems  clear  that  the  rule  that  all  surviving  co- 
obligors  should  be  parties  in  general  prevails.  2  Vent., 
348  ;  3  Atk.,  406.  Shall  it  be  permitted  to  prevail,  where 
no  relief  can  be  given  against  the  co-obligors?  Shall  a  cer- 
tificated bankrupt,  who  is  a  surviving  partner,  be  joined  with 
the  executors,  although  no  remedy  can  be  effectually  had  in 
the  suit  against  him?  No  authority  has  been  adduced  exactly 
in  point.  The  case  of  Ashurst  v.  Eyre,  in  2  Atk.,  51,  was 
supposed  at  first  to  support  the  affirmative ;  but  it  is  very 
clear,  upon  a  further  examination  of  that  case,  as  corrected  in 
3  Atk.,  341,  that  no  such  question  could  have  occurred,  as  the 
parties  appear  all  to  have  been  solvent.  There  is  obviously  a 
mistake  in  what  is  imputed  to  Lord  Hardwicke  in  speaking  of 
this  case  in  3  Atk.,  406. 

In  no  case  where  relief  has  been  sought  against  the  repre- 
sentatives of  a  deceased  partner,  on  the  ground  of  bankruptcy 
of  the  surviving  partner,  have  I  been  able  to  discover  that  the 
bankrupt  liimself  or  his  assignees  have  been  made  parties. 
On  the  contrary,  if  the  reports  can  be  relied  on  as  evidence, 
the  bill  has  been  uniformly  against  the  representatives  alone. 
This  very  silence,  in  cases  so  strenuously  and  ably  argued, 
affords  a  strong  presumption  of  the  practice  and  the  law  of  the 
court.  There  seems,  indeed,  good  reason  why  they  should 
not  be  made  parties,  because  the  bankrupt  may  plead  his  cer- 
tificate in  bar  without  further  answer,  and  the  assignees  are 


VAN    HKl.MSDYK     V.     KANK.  175 

bound  to  ap{)ly  the  j)ropcrty  in  their  hand.^,  accoi<ling  to  the 
course  of  distribution  jirescribed  by  the  hnv  and  the  court, 
among  the  creditors  who  jH-ove  thciif-  debts  under  the  com- 
mission. They  have,  therefore,  no  interest  in  the  case  stated 
in  the  bill,  and  do  not  fall  within  the  principle  of  the  rule  as 
to  parties,  if,  indeed,  it  appeared  that  there  was  a  surplus  in 
the  hands  of  the  assignees  beyond  the  sum  necessary  for  pay- 
ment of  all  other  debts,  perha])S  equity  would  inteipose,  and 
in  some  shape  require  an  ap])lication  to  that  fund  in  aid  of 
the  executors.  As  to  the  objection  that  the  executors  in  this 
w^ay  would  be  deprived  of  all  assistance  in  taking  the  account, 
and  of  contribution,  it  may  be  answered  that  they  may  file  a 
cross-bill,  and  avail  themselves  of  all  legal  evidence  in  their 
defense,  and  the  right  of  contribution  does  not  concern  the 
plaintiff.  It  is  res  inter  alios  acta.  I  am  therefore  well  satis- 
fied, upon  the  reason  of  the  thing  and  the  practice,  that  if  the 
certificate  of  Monroe,  Snow  &  Monroe  had  been  a  valid  dis- 
charge, neither  they  nor  their  assignees  need  have  been  made 
parties. 

But  it  is  not  necessary  absolutely  to  decide  this  point,  be- 
cause there  is  another  view  of  the  subject  which  is  fatal  to  the 
bill  in  its  present  shape.  In  order  to  maintain  the  jurisdic- 
tion of  this  court,  it  is  necessary  that  the  bill  should  chai'ge  an 
absolute  discharge  or  insolvency  of  Monroe,  Snow  &  Monroe. 
I  am  of  opinion  that  no  such  discharge  is  shown  ;  and  in  the 
bill,  there  is  no  allegation  that  they  were  at  the  filing  of  the 
bill  actually  insolvent.  Nothing  can  be  more  clear  than  that 
if  they  were  liable  at  law,  and  able  to  pay,  the  present  bill 
could  not  be  sustained.  It  is  j)erfectly  well  settled  that  equity 
w^ill  not  lend  its  aid  to  reach  assets  in  the  hands  of  executors, 
when  a  complete,  adequate  and  effectual  remedy  exists  at  law 
against  surviving  solvent  partners.  Iloare  v.  Contencin,  1 
Bro.  Rep.,  27.  The  bill  therefore  does  not  contain  an  allega- 
tion which  is  now  material,  and  the  answer  denies  the  present 
insolvency. 

Whether,  if  the  bill  did  charge  such  insolvency,  and  it  were 
admitted  or  proved,  it  would  become  necessary  and  |)roper  to 
make  the  insolvents  or  their  assignees  parties  to  the  suit,  I 
give  no  opinion.  If  the  parties  raise  the  question,  it  will  de- 
serve and  receive  the  deliberate  consideration  of  the  court. 

[Note. — Only  so  much  of  this  case  is  reported  as  relates  to  Kqiiity  Pleading 
and  Practice.  ] 


CHAPTER  VII. 

FURTHER  PROCEEDINGS  ON  PART  OF  COMPLAINANT. 

Bnle  27. 

No  order  shall  be  made  by  any  judge  for  referring  any  bill, 
answer,  or  pleading,  or  other  matter  or  proceeding,  depending 
before  the  court,  for  scandal  or  impertinence,  unless  exceptions 
are  taken  in  writing  and  signed  by  counsel,  describing  the  par- 
ticular passages  which  are  considered  to  be  scandalous  or  im- 
pertinent ;  nor  unless  the  exceptions  shall  be  filed  on  or  Ijefore 
the  next  rule-day  after  the  process  on  the  bill  shall  be  return- 
able, or  after  the  answer  or  pleading  is  filed.  And  such  order, 
when  obtained,  shall  be  considered  as  abandoned,  unless  the 
party  obtaining  the  order  shall,  without  any  unnecessary  delay, 
procure  the  master  to  examine  and  report  for  the  same  on  or 
before  the  next  succeeding  rule-day,  or  the  master  shall  certify 
that  further  time  is  necessary  for  him  to  complete  the  exam- 
ination. 

Rule  S3. 

The  plaintiff  may  set  down  the  demurrer  or  plea  to  be 
argued,  or  he  may  take  issue  on  the  plea.  If,  upon  an  issue, 
the  facts  stated  in  the  i)lea  be  determined  for  the  defendant, 
they  shall  avail  him  as  far  as  in  law  and  equity  they  ought  to 
avail  him. 

Btde  45. 

No  special  replication  to  any  answer  shall  be  filed.  But  if 
any  matter  alleged  in  the  answer  shall  make  it  necessary  for 
the  plaintiff  to  amend  his  bill,  he  may  have  leave  to  amend 
the  same  with  or  without  the  payment  of  costs,  as  the  court, 
or  a  judge  thereof,  may  in  his  discretion  direct. 

(176) 


ixjiiTY   1"Li:ai)IN(j.  177 


Ik  II I V  <;/. 


After  {in  nuswor  is  filed  uii  any  rulq-tlay,  tlie  plaint  ill'  shall 
be  allowed  until  the  iiext  succeeding  rule-day  to  file  in  the 
clerk's  oftice  exceptions  thereto  for  insuflicieucy,  and  no  longer, 
unless  a  longer  time  shall  be  allowed  for  the  purpose,  upon 
cause  shown  to  the  court,  or  a  judge  thereof;  and,  if  no  ex- 
ception shall  be  filed  thereto  within  that  ])eriod,  the  answer 
shall  be  deemed  and  taken  to  be  sufficient. 

linlc  (ii*. 

If,  upon  argument,  the  plaintiff's  exceptions  to  the  answer 
shall  be  overruled,  or  the  answer  shall  be  adjudged  insufficient, 
the  prevailing  party  shall  be  entitled  to  all  the  costs  occa- 
sioned thereby,  unless  otherwise  directed  by  the  court,  or  tiie 
judge  thereof,  at  the  hearing  upon  the  exceptions. 

Itule  6">. 

When  the  same  solicitor  is  employed  for  two  or  more  de- 
fendants, and  separate  answers  shall  be  filed,  or  other  pro- 
ceedings had,  by  two  or  more  of  the  defendants  separately, 
costs  shall  not  be  allowed  for  such  separate  answers,  or  other 
proceedings,  unless  a  master,  upon  reference  to  him,  shall 
certify  that  such  separate  answers  and  other  proceedings 
were  necessary  or  proper,  and  ought  not  to  have  been  joined 
together. 

Mule  35. 

If,  upon  the  hearing,  any  demurrer  or  plea  shall  be  al- 
lowed, the  defendant  shall  be  entitled  to  his  costs.  But  the 
court  may,  in  its  discretion,  upon  motion  of  the  plaintiff, 
allow  him  to  amend  his  bill,  upon  such  terms  as  it  shall 
deem  reasonable. 

Bute  ,34. 

If,  upon   the  liearing,  any   demurrer  or  plea  is  overrcled, 
the  plaintiff'  shall  be  entitled  to  his  costs  in  the  cause  up  to 
12 


178  EQUITY    PLEADING. 

that  period,  unless  the  court  shall  be  satisfied  that  the  de- 
fendant has  good  ground,  in  point  of  law  or  fact,  to  inter- 
pose the  same,  and  it  was  not  interposed  vexatiously  or  for 
delay.  And,  upon  the  overruling  of  any  plea  or  demurrer, 
the  defendant  shall  be  assigned  to  answer  the  bill,  or  so  much 
thereof  as  is  covered  by  the  plea  or  demurrer,  the  next  suc- 
ceeding rule-day,  or  at  such  other  period  as,  consistently  with 
justice  and  the  rights  of  the  defendant,  the  same  can,  in  the 
judgment  of  the  court,  be  reasonably  done  ;  in  default  whereof, 
the  bill  shall  be  taken  against  him  p'o  confesso,  and  the 
matter  thereof  proceeded  in  and  decreed  accordingly. 

Mule  3S. 

Tf  the  plaintiff  shall  not  reply  to  any  plea,  or  set  down  any 
plea  or  demurrer  for  argument  on  the  rule-day  when  the  same 
is  filed,  or  on  the  next  succeeding  rule-day,  he  shall  be  deemed 
to  admit  the  truth  and  sufi^iciency  thereof,  and  his  bill  shall 
be  dismissed  as  of  course,  unless  a  judge  of  the  court  shall 
allow  him  further  time  for  that  jiurpose. 

Rule  0,3. 

Where  exceptions  shall  be  filed  to  the  answer  for  insuffi- 
ciency, within  the  period  prescribed  by  these  rules,  if  the  de- 
fendant shall  not  submit  to  the  same  and  file  an  amended 
answer  on  the  next  succeeding  rule-day,  the  plaintiff  shall 
forthwith  set  them  down  for  a  hearing  on  the  next  succeeding 
rule-day  thereafter,  before  a  judge  of  the  court,  and  shall 
enter,  as  of  course,  in  the  order-book,  an  order  for  that  pur- 
pose ;  and  if  he  shall  not  so  set  down  the  same  for  a  hearing, 
the  exceptions  shall  be  deemed  abandoned,  and  the  answer 
shall  be  deemed  sufficient;  ])rovided,  however,  that  the  court, 
or  any  judge  thereof,  may,  for  good  cause  shown,  enlarge  the 
time  for  filing  exceptions,  or  for  answering  the  same,  in  his 
discretion,  upon  such  terms  as  he  may  deem  reasonable. 


EQUITY    PLEADING.  170 

liule  06. 

Whenever  the  answer  .of  the  defc^ndant  sliall  not  be  ex- 
cepted to,  or  shall  be  adjudged  or  deemed  .sufficient,  the 
plaintiff  shall  file  the  general  replication  thereto  on  or  before 
the  next  succeeding  rule-day  thereafter;  and  in  all  cases 
where  the  general  replication  is  filed,  the  cause  shall  be 
deemed,  to  all  intents  and  purposes,  at  issue,  without  any  re- 
joinder or  other  [Jeading  on  either  side.  Tf  the  plaintiff  shall 
omit  or  refuse  to  file  such  rej^lication  within  the  prescribed 
period,  the  defendant  shall  be  entitled  to  an  order,  as  of 
course,  for  a  dismissal  of  the  suit ;  and  the  suit  shall  there- 
upon stand  dismissed,  unless  the  court,  or  a  judge  thereof, 
shall,  upon  motion,  for  cause  shown,  allow  a  replication  to  be 
filed  nunc  pro  tunc,  the  plaintifi' submitting  to  speed  the  cause, 
and  to  such  other  terms  as  may  be  directed. 

liule  47. 

In  all  cases  where  it  shall  appear  to  the  court  that  persons, 
who  might  otherwise  be  deemed  necessary  or  proper  parties 
to  the  suit,  can  not  be  made  parties  by  reason  of  their  being 
out  of  the  jurisdiction  of  the  court,  or  incapable  otherwise  of 
being  made  parties,  or  because  their  joinder  would  oust  the 
jurisdiction  of  the  court  as  to  the  parties  before  the  court,  the 
court  may,  in  their  discretion,  proceed  in  the  cause  without 
making  such  persons  parties  ;  and  in  such  cases  the  decree 
shall  be  without  prejudice  to  the  rights  of  the  absent  jiarties. 

liule  64. 

If,  at  the  hearing,  the  exceptions  shall  be  allowed,  the  de- 
fendant shall  be  iMund  to  j)ut  in  a  full  and  comjdotc  answer 
thereto  on  the  next  succeeding  rule-day  ;  otherwise  the  plaintiff 
shall,  as  of  course,  be  entitled  to  take  the  bill,  so  far  as  the 
matter  of  such  exceptions  is  concerned,  as  confessed,  or,  at  his 
election,  he  may  have  a  writ  of  attachment  to  compel  the  de- 
fendant to  make  a  better  answer  to  the  matter  of  llic  cxccp- 


180  EQUITY    PLEADING. 

tions ;  and  the  defendant,  when  he  is  in  custody  upon  such 
writ,  shall  not  be  discharged  therefrom  but  by  an  order  of  the 
court,  or  of  a  judge  thereof,  upon  his  putting  in  such  answer, 
and  complying  with  such  other  terms  as  the  court  or  judge 
may  direct. 

BROOKS  V.  BYAM. 
(Circuit  Court  for  Massachusetts  :  1  Story,  296-307.     1840. ) 

Statement  of  Facts. — Bill  in  equity  for  an  injunction 
against  the  further  prosecution  of  a  suit  at  law  brought  by 
present  defendants  against  present  plaintiff.  Plaintiff  excepts 
to  the  answer  of  one  of  the  defendants. 

Opinion  by  Story,  J. 

The  question  arising  in  this  case  is  upon  the  exception 
taken  by  the  plaintiff  in  equity  to  the  answer  of  Prentiss 
Whitney,  one  of  the  defendants,  "  because,  in  stating  in  his 
answer  what  he  has  been  informed  of  by  Byam  (another  de- 
fendant), he  does  not  say  whether  he  actually  believes  the 
same  to  be  true."  Ceitainly  this  exception  is  taken  in  a  form 
and  manner  entirely  too  general  to  be  upheld  by  the  court. 
The  exception  should  have  stated  the  charges  in  the  bill,  and 
the  interrogatory  applicable  thereto  to  which  the  answer  is  ad- 
dressed, and  then  have  stated  the  terms  of  the  answer  verba- 
tim, so  that  the  court  without  searching  the  bill  and  answer 
throughout,  might  at  once  have  perceived  the  ground  of  the 
exception  and  ascertained  its  sufficiency.  It  is  very  properly 
observed  by  the  vice-chancellor,  Sir  John  Leach,  in  Hodgson 
V.  Butterfield,  2  Sim.  &  Stu.,  236,  that,  "if  the  plaintiff  com- 
plains that  a  particular  interrogatory  of  the  bill  is  not  an- 
swered, he  must  state  the  interrogatory  in  the  very  terms  of 
it,  and  cannot  impose  upon  the  court  the  trouble  of  first  deter- 
mining whether  the  varied  expressions  of  the  interrogatory 
and  the  exception  are  to  be  reconciled."  See,  also,  Gressley 
on  Evid.,  21.  To  which  it  may  be  added,  that  the  same  rule 
applies  in  respect  to  the  necessity  of  stating  the  charge  or  fact 
in  the  bill  on  which  the  interrogatory  is  founded  ;  for,  if  the 
interrogatory  be  irrelevant  to  the  matters  charged  in  the  bill, 
the  defendant  need  not  answer  the  interrogatory  at  all.  Mit- 
ford,  Eq.  PI.  by  Jeremy,  45  ;  Cooper,  Eq.  PL,  12  ;  Gilb.  For. 
Roman,  91,  218  ;  Story  on  Equity  Plead.,  §  36  ;  Gresley  on 
Evid.,  17  to  20,  Am.  edit.,  1837;  Story  on  Equity  Plead,  § 


BROOKS    V.    in'AM.  ISI 

853;  Harrison,  Vh.  Pract.  by  Newlaiid,  eh.  ol,  }).  IM.  The 
court  ought,  therelbre,  without  search  iiij^  through  the  whole 
bill,  from  the  form  of  the  exception,  to  luive  the  nuiteriuls 
fully  before  it  by  which  to  ascertain  at  once  its  comj)etency 
and  propriety.  In  this  respect  the  exception  is  in  itself  insuf- 
ficient and  exceptionable.  The  objection,  however,  has  not 
been  insisted  upon  at  the  bar. 

Nothing  is  more  clear  in  principle  than  the  rule  that,  in 
the  case  of  an  interrogatory  pertin.ent  to  a  charge  in  the  bill, 
requiring  the  defendant  to  answer  it  "  as  to  his  knowledge,  re- 
membrance, information  and  belief"  (which  is  the  usual  foi'ui- 
ulary),  it  is  not  sufficient  for  the  defendant  to  answer  as  to  his 
knowledge;  but  he  must  answer  also  as  to  his  information 
and  belief  The  plain  reason  is  that  the  admission  may  be  of 
use  to  the  plaintiti'  as  proof  if  the  defendant  should  answe?"  as 
to  his  belief  in  the  affirmative  without  qualification,  Thus, 
although  a  defendant  should  state  that  he  has  no  knowledge  of 
the  fact  charged,  if  he  should  also  state  that  he  has  been  in- 
formed and  believes  it  to  be  true,  or  simpl}'  that  he  believes  it 
to  be  true,  without  adding  any  qualification  thereto,  such  as 
that  he  does  not  know  it  of  his  own  knowledge  to  be  so,  and 
therefore  he  does  not  admit  the  same,  it  would  be  taken  by  the 
court  as  a  fact  admitted  or  proved  ;  for  the  rule  in  equity  gen- 
erally (although  not  universally)  is  that  what  the  defendant 
believes  the  court  will  believe.  2  Daniell,  Chan.  Prac,  257; 
id.,  402;  Gresley  on  Evid.,  19,  20;  Potter  v.  Potter,  1  Yes., 
274  ;  Garth  v.  jrickson.  0  Ves.,  37,  38  ;  Htory  on  Eq.  Plead.,  § 
854.  The  rule  might,  perhaps,  be  more  exactly  stated  as  to  its 
real  foundation  by  saying  that  wliatever  allegation  of  fact  the 
defendant  does  not  choose  directly  to  deny,  but  states  his  be- 
lief tiiereof,  amounts  to  an  admission  on  his  part  of  its  truth, 
or  that  he  does  not  mean  to  put  it  in  issue  as  a  matter  of  contro- 
versy in  the  cause.  But  a  mere  statement  by  the  defendant, 
in  his  answer,  that  he  has  no  knowledge  that  the  fact  is  as 
stated,  without  any  answer  as  to  his  belief  concerning  it,  will 
not  be  such  an  admission  as  can  be  received  as  evidence  of  the 
fact.  2  Daniell,  Ch.  Pr.  257;  id.,  402;  Coop.  Eq.  PI.,  814; 
Harris,  Ch.  Pract.  by  Newl.,  ch.  31,  p.  181.  Such  an  answer  is 
insufficient ;  and,  therefore,  the  defect  proj^erly  constitutes  a 
matter  of  exception  thereto,  since  it  deprives  the  plaintiff  of 
the  benefit  of  an  admission  to  which  he  is  justly  entitled. 
Ibid.      However,  courts  of  equity  do  not,  in  this  respect,  act 


182  EQUITY    PLEADING. 

with  rigid  and  technical  exactness  as  to  the  manner  in  which 
the  defendant  states  his  belief  or  disbelief;  if  it  can  be  fairly- 
gathered  from  the  whole  of  tliat  part  of  the  answer  what  is, 
according  to  the  intention  of  the  defendant,  the  fair  result  of 
its  allegations.  2  Daniell,  Ch.  Pr.,  257  ;  Am  hurst  v.  King,  2 
Sim.  &  Stu.,  183. 

It  is  obvious  that,  in  answers  as  to  the  information  and  be- 
lief of  the  defendant,  there  may  be,  and,  indeed,  ordinarily  will 
be,  partial  admissions  and  partial  denials  of  every  shade  and 
character,  some  of  which  may  be  delivered  in  terms  of  great 
ambiguity  and  uncertainty,  and  some  mixed  up  with  various 
qualifications  and  attendant  circumstances.  Gresley  on  Evid., 
2d  edit.,  1837.  No  general  rule,  therefore,  can  be  laid  down 
which  will  govern  all  the  different  classes  of  cases  which  may 
thus  arise  as  to  the  sufficiency  or  insufficiency  of  an  answer 
in  this  respect.  A  man  may  have  an  undoubting  belief  of  a 
fact,  or  he  may  disbelieve  its  existence,  or  he  may  believe  it 
highly  probable,  or  merely  probable,  or  the  contrary,  or  he 
may  have  no  belief  whatsoever  as  to  it.  In  each  of  these 
cases  he  is  bound  to  answer  conscientiously  as  to  the  state  of 
his  mind  in  the  matter  of  his  belief;  and  if  he  does,  that  is 
all  which  a  court  of  equity  will  require  of  him.  If  a  man 
truly  states  that  he  cannot  form  any  belief  at  all  respecting 
the  truth  of  the  fact  or  information,  that  is  sufficient,  and  it 
puts  the  plaintiff  upon  proof  of  it.  If,  on  the  other  hand, 
the  defendant  should  state  (as  in  the  present  case  the  defendant 
does  in  effect  state)  that  he  "  has  no  knowledge,  information 
or  belief  that  the  fact  or  information  inquired  about  is  not 
true,"  or  if  he  states  (as  in  the  present  case)  that  he  has  been 
informed  by  a  party  and  verily  believes,  that  such  party  did 
not  possess  any  knowledge,  information  or  belief  of  the  fact 
w^hich  the  interrogatory  points  out, — in  each  of  these  cases  it 
seems  to  me  that  the  answer,  if  expressive  of  the  true  state  of 
mind  of  the  defendant,  might,  at  least  for  some  purposes,  be 
held  sufficient.  But  then,  if  such  language  were  unaccom- 
panied by  any  other  qualifications  or  explanations,  I  should 
understand  that  the  defendant  did  mean  to  assert  his  belief 
of  the  truth  of  the  information  or  statement  of  fact,  because, 
if  he  had  no  knowledge,  information  or  belief  that  it  is  not 
true,  he  must  be  presumed  to  give  credit  to  it ;  and  if  he  did 
not  intend  so  to  be  understood,  it  would  be  his  duty  to  say  in 
express  terms  that  he  had  no  belief  about  the   matter;  and 


BROOKS    V.    BY AM.  183 

he  ought  not  to  bo  allowed  to  shelter  himself  behind  equiv- 
ocal or  evasive  or  doubtful  terms,  and  thereby  to  mislead  the 
plaintiff  to  his  injury. 

And  this  leads  me  to  remark,  and  it  is  the  real  and  only 
point  of  difficulty  which  1  have  felt  upon  the  exception, 
whether,  although  the  plaintiff  may  agree  to  take  and  accept 
such  an  admission,  interpreting  it  as  affirmative  of  the  de- 
fendant's belief,  if  in  that  sense  it  would  be  beneficial  to  him- 
self, he  is  positively  bound  to  receive  it,  when  it  is  clearly 
susceptible  of  a  diflerent,  or  even  of  an  opposite,  interpretation, 
which  may  affect  the  nature  and  extent  of  his  proofs  at  the 
hearing  of  the  cause.  Upon  full  reflection,  I  think  that  he  is 
not  positively  bound  to  receive  it,  although  certainly  I  should 
interpret  it  as  an  affirmative,  if  it  would  be  favorable  for  the 
plaintiff;  but  he  has  a  right  to  require  that  the  defendant 
should  state  in  direct  terms,  or,  at  least,  in  unequivocal  terms, 
either  that  he  does  believe,  or  that  he  does  not  believe,  the 
matter  inquired  of,  or  that  he  cannot  form  any  belief,  or  has 
not  any  belief  concerning  the  matter  ;  and  according  as  the 
answer  shall  be  the  one  way  or  the  other,  that  he  calls  upon 
the  plaintiff  for  proof  thereof,  or  hie  admits  it,  or  he  waives 
'any  controversy  about  it. 

Upon  this  ground  my  opinion  is  that  the  exception  is  welP 
founded,  at  least,  as  to  some  of  the  allegations  in  the  answer. 
It  may,  perhaps,  be  sufficient  for  the  court  merely  in  this  gen- 
eral manner  to  intimate  its  present  opinion  upon  the  case  ; 
and  it  will  be  easy  for  the  counsel  to  make  its  application  to 
the  various  parts  of  the  answer  complained  of.  But  to  make 
myself  more  clearly  understood,  I  wish  to  give  an  illustration 
of  the  principle,  drawn  from  the  present  bill  and  answer, 
especially  as  the  nature  of  the  objection  may  thereby  be  seen- 
in  a  more  strong  and  exact  light. 

The  object  of  the  bill  is  to  obtain,  among  other  thingvS,  a 
perpetual  injunction  to  a  suit  now  pending  on  the  law  side  of 
this  court,  brought  by  the  defendants  in  the  bill  (Byam  and 
others)  against  the  plaintiff  (Brooks),  for  a  violation  of  a 
patent,  which  they  claim  title  to  as  assignees  of  the  patentee; 
and,  among  other  charges,  the  bill  for  this  purpose  alleges 
that  the  original  patentee  (Alonzo  D.  Phillips)  had  before  his 
assignment  to  these  parties  assigned  a  limited  right  therein  to 
one  John  Brown,  under  whom  the  defendant  claims  a  still 
more   limited  title,  as  a  sub-purchaser,  p-o  ianto,  and   insisted 


184  EQUITY    PLEADING. 

that  his  acts  done  in  supposed  viohition  of  the  patent  are 
rightfully  done  under  this  sub-title;  The  patent  is  alleged  to 
bear  date  on  the  24th  of  October,  1837  ;  the  assignment  to 
Brown  on  the  2d  of  January,  J  837  ;  the  assignment  to  Brooks 
on  the  18th  of  September,  1837  ;  but  it  was  not  recorded  until 
the  15th  of  July,  1839  ;  and  the  assignment  to  Byam  on  the 
28th  day  of  July,  1838,  under  whom  tlie  other  defendants 
(Whitney  and  others)  derive  title,  which  only  was  recorded 
within  the  time  prescribed  by  law,  whereas  the  assignment  to 
Brown  was  not.  Under  these  circumstances  the  bill  chai'ges 
that  Byam,  at  the  time  of  the  assignment  to  him,  and  the 
other  defendants  (and  among  them  W'hitney).  at  the  time  of 
the  assignment  to  them  by  Byanj,  had  knowledge  and  in- 
formation and  good  cause  of  belief  of  the  prior  assignment  to 
Brown.  And  in  the  interrogatory  part  of  the  bill  the  defend- 
ants are  required  "  full,  true,  direct,  particular  and  perfect 
answer  and  discovery  to  make,  and  that  not  only  according 
to  the  best  of  their  knowledge,  but  to  the  best  of  their  re- 
spective information,  hearsay  and  belief,  to  all  and  singular 
the  matters  and  allegations  and  charges  aforesaid.'' 

Now,  the  answer  of  the  defendant  Whitney  (which  is  ex- 
cepted -to)  states  that  he  (the  defendant)  does  not  of  his  own 
knowledge  know  whether,  at  the  time  of  the  assignment  to 
Byam,  he  (Byam)  had  any  information  or  knowledge,  or  had 
any  cause  to  believe,  that  Phillips  had  previously  made  any 
conveyance  to  Brown,  or  Brown  to  the  plaintiff  (Brooks),  as 
alleged  in  the  bill ;  but  this  defendant  has  been  informed  by 
said  Byam  that,  at  the  time  when  the  said  Phillips  conveyed 
and  assigned  to  him  all  his  right  and  interest  in  and  to  the 
patent-right,  the  said  Byam  had  no  knowledge,  information  or 
cause  to  believe  that  the  said  Phillips  had  made  any  convey- 
ance to  the  said  Brown,  or  that  the  said  Brown  had  made  any 
conveyance  to  the  com[)lainant ;  and  this  defendant  has  no 
knoiv ledge,  information  or  belief  that  the  information  so  derived 
from,  the  said  Byam  is  not  true."  Now,  it  is  to  the  matter  and 
form  of  this  last  clause  (and  a  like  allegation  is  to  be  found  in 
other  parts  of  the  answer)  that  the  objection  is  taken  by  the 
exception.  The  argument  is  that  the  clause  is  ambiguous  ; 
that  it  does  not  assert,  in  direct  terms,  that  the  defendant  be- 
lieved or  disbelieved  the  statement  of  Byam  ;  or  that  the  de- 
fendant had  no  belief,  or  was  unable  to  form  any  belief,  about 
the  matter,  and,  therefore,  required  the  plaintiff  to  prove  the 


MYKKS    V.    Doin:.  185 

knowledge,  inforniation  or  helici'  of  I>yani  at  tlic  time  ol'  the 
assignment  to  him.  So  that,  in  fact,  tlie  defendant,  by  the 
form  of  his  aHegation,  does  not  positively  }»ut  the  assei'ted  fact 
in  controversy,  as  to  the  knowledge,  information  or  belief  of 
Byani,  by  athrming  his  own  belief  of  IJyam's  statement; 
neither  does  he  dispense  with  the  {)roof  thereof  by  <lenying  his 
own  belief  thereof;  neither  does  he  assert  that  he  is  unahic  to 
form  any  belief  npon  the  snbject,  and  therefore  calls  for  jiroof 
of  the  allegation  of  the  bill  on  this  point ;  but  he  leaves  the 
matter  in  a  state  of  ambiguity  and  open  to  different  interpre- 
tations as  to  the  true  intent  and  meaning  of  the  answer. 

It  appears  to  me  that  in  this  view  the  exception  is  well 
founded.  When  the  defendant  says  that  he  "  has  no  knowl- 
edge, information  or  belief  that  the  information  so  derived 
from  the  said  Byam  is  not  true,"  he  merely  pronounces  a 
negative,  which  may,  indeed,  in  some  sort,  amount  to  a  nega- 
tive pregnant,  argue)i(Jo,  that,  as  he  has  no  information  or  be- 
lief that  it  is  not  true,  therefore  he  believes  it  to  be  true,  which 
would  certainly  be  a  natural,  although  not  an  irresistible,  pre- 
sumption. But  it  seems  to  me  that  the  plaintiff  has  a  rigiit 
to  more  than  this  ;  to  know  whether  the  defendant  himself 
has  placed  confidence  in  the  statement  or  not,  or  whether  his 
mind  hangs  in  duhio,  and  he  is  unable  to  form  any  belief  either 
way..  In  the  latter  case,  certainly,  less  evidence  would  be 
necessary  to  infer  ])resumptively  the  knowledge,  information 
or  belief  of  Byam  himself  than  if  the  defendant  himself  be- 
lieved Byam's  statement  and  acted  upon  that  belief;  for  a 
court  is  not  bound,  in  favor  of  a  defendant,  to  have  a  more 
confident  belief  in  a  party  than  the  defendant  himself  pro- 
fesses to  have.  But  what  I  rely  on  is  that  the  defendant,  by 
such  a  form  of  answer,  leaves  it  entirely  equivocal  whether  he 
believes  or  is  unable  to  form  any  belief;  and  the  plaintill'  has 
a  right  to  know  positivel}^  which  of  the  two  is  his  I'cal  j)re- 
•dicament. 

Tlie  exception,  therefore,  on  tliis  point,  ought  to  be  allowed. 

MYERS  V.  DORR. 
(Circuit  Court  for  Vermont :   13  Blatchford.  22-31.     1870. ) 

Statement  of  Facts. — Myers  filed  a  bill  against  Don-  for 
a  dissolution  of  a  partnership  and  for  an  account.  He  was  a 
citizen  of  Ohio  and  the  defendant  resided  in  Vermont.      He 


186  EQUITY    PLEADING. 

afterwards  filed  an  amended  and  supplemental  bill,  seeking 
to  make  the  Sutherland  Falls  Marble  Company  a  defendant, 
and  requiring  that  company  to  fulfill  a  contract  it  had  made 
to  furnish  marble  to  the  firm,  and  charging  that,  colluding 
with  Dorr,  it  had  refused  to  do  so  since  the  appointment  of  a 
receiver  in  the  case.  The  marble  company  ap})eared  specially 
and  pleaded  to  the  jurisdiction  that  it  was  a  INIassachusetts 
corporation,  and  was  not  chartered  by  nor  found  in  Vermont. 
There  was  a  replication  to  this  plea.  The  cause  was  heard  as 
to  the  marble  company. 

Opinion  by  Woodruff,  J. 

The  single  question  presented  by  the  pleadings  in  this  suit 
as  now  brought  before  us,  is  whether  the  facts  alleged  by  the 
Sutherland  Falls  Marble  Company  in  their  plea  are  proved. 
The  complainant  has  thought  proper,  by  replying  to  the  plea, 
to  put  its  averments  in  issue. 

The  rule  is  elementary  and  is  well  settled,  that,  when  a 
complainant  in  equity,  instead  of  setting  down  the  defendant's 
plea  for  argument  to  test  its  sufficiency,  elects  to  reply  thereto, 
denying  the  facts  alleged,  he  admits  its  sufficiency  both  in 
form  and  substance  as  a  defense  to  all  the  matter  of  the  bill 
to  which  it  is  pleaded,  and  that  if  the  facts  shall,  upon  the 
proofs  taken,  be  found  established,  the  bill  must  be  dismissed 
(Story's  Eq.  PL,  §  697  ;  Gallagher  v.  Roberts,  1  Wash.,  320  ; 
Hughes  V.  Blake,  6  Wheat.,  453  ;  Rhode  Island  v.  Massachu- 
setts, 14  Pet.,  210,  257) ;  and  this  must  be  done  without  ref- 
erence to  any  equity  arising  from  other  facts  stated  in  the  bill. 
There  is  no  occasion  to  discuss  the  evidence.  The  proofs 
taken  to  sustain  the  allegations  of  the  plea  are  uncontradicted 
by  any  evidence  produced  on  the  part  of  the  complainant. 
Indeed,  we  do  not  understand  the  counsel  for  the  complainant 
to  claim  that  those  facts  are  not  established.  The  plea  is  to 
the  jurisdiction  of  the  court  over  the  defendant  corporation. 
By  replying,  the  complainant  admits  the  sufficiency  of  the 
facts  alleged  to  support  the  plea.  The  allegations  of  the  plea 
are  proved,  that  is  to  say,  it  is  proved  that  tlie  corporation 
was  not  organized  for  the  sole  purpose  of  cjuarrying  marble 
in  Vermont,  and  has  property  without  that  state ;  and  that 
it  has  never  had  or  adopted,  or  acted  under,  any  charter 
granted  by  the  legislature  of  that  state,  and  is  not  a  citizen  of 
that  state,  but,  on  the  contrary,  is  a  corporation  organized  and 
established  wnthin  and  by  the  laws  of  the  state  of  Massachu- 
setts only. 


MYERS    V.    DORR.  187 

It  is  (luitc  too  late  to  insist  that  tlie  residence  or  citizenship 
of  a  director  or  stockholder  of  a  corporation  in  another  state 
than  that  by  which  it  was  created  changes  or  atiects  its  citizen- 
shii).  Whatever  was  forniej'ly  held  on  that  subject  to  the 
contrary,  it  is  now  well  settled  that  a  corj)oration  can  have  no 
citizenship  or  inhabitancy  out  of  the  state  wherein  it  was 
created  ;  and  this  has  become  too  familiar  to  require  that  we 
should  refer  to  the  numerous  modern  cases  to  that  effect.  We 
might,  therefore,  witli  great  proi)riety,  stop  here,  and  say  the 
defendant  has  established  the  plea,  and  is,  therefore,  entitled 
to  a  decree  dismissing  the  bill.  The  discussion,  upon  the 
hearing,  had  a  much  broader  range.  The  counsel  for  the 
complainant  treated  the  hearing  as  if  it  were  upon  a  demuri-er 
to  the  plea,  insisting  that  the  facts  alleged  therein  and  ])roved 
did  not  show  a  want  of  jurisdiction,  and  that,  in  considering 
that  question,  the  court  should  regard  every  fact  alleged  in 
the  bill,  which  the  plea  does  not  deny,  as  true.  What  we 
have  above  said  is  in  direct  denial  that  the  con'ij)lainant  is 
at  liberty  to  raise  any  question  touching  the  sufficiency  of  the 
plea.  But  if  we  should  pursue  the  subject,  and  consider  the 
views  urged  upon  us,  the  result  to  the  complainant  must  be 
the  same. 

The  defendant  is  a  corporation  created  by  or  under  the  laws 
of  the  state  of  jNIassachusetts,  and  has  no  other  residence  or 
inhabitancy.  The  judiciary  act  of  1789,  §  11  (1  U.  S.  Stat,  at 
Large,  78),  is  express,  that  no  civil  suit  shall  be  brouglit  be- 
fore a  circuit  or  district  court,  against  an  inhabitant  of  the 
United  States,  by  any  original  process,  in  any  other  disti'ict 
than  that  whereof  he  is  an  inhabitant,  or  in  which  he  shall 
be  found  at  the  time  of  serving  the  writ.  In  respect  to  the 
question  of  jurisdiction,  a  cor{)oration  is  to  be  treated  j^ro  hac 
vice  as  a  natural  {)erson.  Clarke  v.  N.  J.  Steam  Nav.  Co.,  1 
Story,  531  ;  Day  v.  Newark  Ind.  R.  Co.,  1  Blatch.,  028.  Such 
corporation  cannot  be  found  out  of  the  state  wherein  it  is 
created,  within  the  meaning  of  the  statute,  and  be  served  by 
or  through  its  officers.  Pomeroy  v.  The  N.  Y.  &  N.  H.  R. 
Co.,  4  Blatch.,  120.  To  the  general  rule  declared  by  the 
statute,  see  Toland  v.  Sprague,  12  Pet.,  300  ;  Picquet  v.  Swan, 
5  Mason,  35;  Richmond  v.  Dreyfous,  1  Sumn.,  131,  and  the 
other  cases  cited  above  ;  and  the  case  of  Minnesota  Co.  v.  St. 
Paul  Co.,  2  Wall.,  GOO,  relied  upon  by  the  complainant  as 
creating  an  exception,  affirms  the  general  rule.     And  yet  here 


188  EQUITY    PLKADING. 

the  Sutherland  Falls  Marble  Company  is  sued  and  required  to 
answer  in  the  district  of  Vermont.  The  circuit  court  of  that 
district  has  no  jurisdiction  to  compel  that  corporation  to  ap- 
pear and  answer,  and  the  repeated  decisions  of  the  supreme 
court,  that  no  decree  can  be  pronounced  which  shall  affect  the 
rights  of  a  party  who  is  out  of  the  jurisdiction,  show  that  no 
decree  can  be  pronounced  against  this  defendant.  Story  v. 
Livingston,  13  Pet.,  3.59  ;  Coiron  v.  Millaudon,  19  How.,  113  ; 
Shields  v.  Barrow,  17  How.,  130;  Northern  Ind.  R.  Co.  v. 
Mich.  Cent.  R.  Co.,  15  id.,  233  ;  Barney  v.  Baltimore  City,  6 
Wall.,  280. 

In  order  to  sustain  the  jurisdiction,  the  counsel  for  the  com- 
plainant insists  that  the  Sutherland  Falls  Marble  Company 
have,  since  this  suit  commenced,  purchased  the  interest  of  the 
defendant  Dorr  in  the  contract  with  them  ;  and  this  is  claimed 
to  be  a  submission  to  the  jurisdiction,  and  to  make  them  sub- 
stantially parties  to  the  suit.  In  the  first  place,  the  fact  al- 
leged is  not  proved,  and  we  are  constrained  so  to  find,  upon 
the  evidence.  In  the  next  place,  if  proved,  it  could  not  affect 
the  question.  A  purchaser  pendente  lite  may  be  said  to  submit 
to  the  jurisdiction,  but  in  this  sense  only — he  purchases  subject 
to  the  litigation  ;  but  the  litigation  may  proceed  without  no- 
ticing his  purchase,  and  he  does  not,  by  such  purchase,  become 
a  necessary  party.  If  the  court  have  not  jurisdiction  of  him, 
he  cannot  be  com]>ellod  to  come  in  as  a  party.  And,  once 
more,  it  is  claimed  to  be  es.sential  to  the  rights  of  the  com- 
plainant, and  to  the  protection  of  the  business  now  in  the 
hands  of  the  receiver,  and  its  successful  j)rosecution,  that  the 
complainant  should  have  the  relief  against  the  Marble  Com- 
pany sought  by  the  supplemental  bill.  A  short  answer  might 
be  given  to  this.  The  complainant  or  the  receiver  must  seek 
that  relief  in  a  court  having  jurisdiction  of  the  party  against 
whom  it  is  sought.  The  circumstance  that  such  relief  would  be 
beneficial  to  the  parties,  and  prevent  incidental  loss  to  them, 
pending  the  prosecution  of  the  original  bill,  will  not  warrant 
or  create  any  extension  of  the  power  of  the  court. 

We  forl)ear  to  remark  upon  the  extraordinary  character  of 
the  whole  case  now  before  us,  in  which  a  complainant  who 
has  commenced  a  suit  to  dissolve  a  copartnership  and  adjust 
its  affairs  witli  his  partner,  seeks,  by  what  he  calls  a  supple- 
mental bill,  to  compel  a  third  party,  who  has  no  interest  in 
the  copartnership,  specifically  to  perform  an  agreement  made 


MYKRS    V.    DOUR.  189 

with  the  firm  ;  and  that  is  just  what  is  sought  a<j;ainst  tliis 
defendant.  As  to  him  the  bill  is,  in  every  just  sense,  an  orij;- 
inal  bill.  If  the  com})lainant  can  maintain  such  a  suit  ujjon 
the  contract  in  question,  he  must  prosecute  it  where  the  court 
has  jurisdiction,  and  the  attempt  to  unite  it  with  a  contro- 
versy with  his  partner  touching  their  copartnershij)  allairs 
cannot  avail  anything.  And  so,  also,  the  receiver  of  the 
copartnership  property,  if,  in  virtue  of  his  receivership,  he  can 
sue  on  the  contract,  or  if  he  can  maintain  a  suit  for  its  specific 
performance,  must  prosecute  it  elsewhere.  Arguing  that  it  is 
important  that  this  c(nirt  should  have  jurisdiction  of  this  de- 
fendant, in  order  to  do  full  justice  and  protect  all  parties,  will 
not  avail  to  confer  jurisdiction  where  the  limitation  imposed 
by  statute  and  settled  by  adjudication  forbids  its  exercise. 

We  have  referred  to  the  nature  of  the  suit  for  tlie  i)urpose  of 
adding  that  the  case  of  Minnesota  Co.  v.  St.  Paul  Co.,  2  Wal- 
lace, ()09,  touches  no  question  here  discussed.  There  a  .^uit 
was  rightly  brought  and  was  decided,  the  court  having  juris- 
diction of  the  parties,  a  decree  was  made,  it  was  found  that 
certain  orders  made  in  execution  of  the  decree  were  invalid  by 
reason  of  a  change  in  the  jurisdiction  of  the  court,  and  that 
further  adjudication  was  necessary  in  order  to  the  execution 
of  the  decree  and  the  disposal  of  the  |)roperty  in  the  hands  of 
the  receiver,  and  it  was  held  that  a  bill  supplemental  in  its 
nature,  filed  in  order  to  carry  the  prior  decree  into  execution 
and  admini.ster  the  property,  Avas  to  be  regarded,  not  as  an 
original  suit,  but  as  a  continuation  of  the  former  suit,  and 
that,  as  no  other  court  could  execute  that  decree  and  make 
due  administration  of  the  property,  the  power  of  the  court  to 
act  was  not  im{)aired  b}"  the  fact  that  persons  who  had  ac- 
quired interests  in  the  property  or  questions  were  citizens  of 
the  same  state  as  complainant  in  such  last-named  bill  ;  and 
the  court  refer  to  cases  in  which  a  person  acquiring  rights  as 
purchaser  under  a  deci'ee  is  regarded  as  a  Jiarty  having  a  right 
to  proceed  in  continuation  of  the  suit,  so  far  as  to  j)rotect  his 
rights,  irrespective  of  any  (juestion  touching  his  citizenship. 
In  a  recent  case  (Jones  v.  Andrews,  10  Wallace,  327),  the  su- 
preme court  have  gone  so  far  as  to  hold,  that,  where  a  judg- 
ment lias  been  recovered  in  a  suit  in  the  circuit  court,  and  the 
judgment  creditor  is  proceeding  in  that  court,  by  the  process 
of  garnishment,  against  an  alleged  debtor  of  the  defendant  in 
the  judgment,  such  debtor  may  file  a  bill  supplemental  or  an- 


J 90  EQUITY    PLEADING. 

ciliary  to  his  defense,  to  protect  himself  against  a  compulsory- 
proceeding  duly  instituted  to  com[)el  him  to  pay,  showing  by 
such  bill  a  just  and  equitable  defense  ;  and  the  necessity  of 
making  the  creditor  not  residing  in  the  district  a  party  will 
not  defeat  such  ancillary  suit.  And  in  Freeman  v.  Howe,  24 
How.,  450,  where  a  suit  had  been  duly  commenced  in  the  fed- 
eral court  by  attachment  of  pro[)erty,  and  while  the  same  was 
in  the  possession  of  the  marshal,  it  was  taken  from  him  by 
process  of  replevin  issued  by  the  state  court  at  the  suit  of  a 
third  party,  the  court  not  only  held  that  such  interference 
with  the  custody  of  the  marshal  was  illegal,  but  declared  that 
a  bill  of  equity  might,  in  such  case,  be  filed  by  the  plaintiff  in 
the  federal  court,  against  the  plaintiff  in  the  replevin  suit,  not- 
withstanding both  were  citizens  of  the  same  state.  'J'hese 
cases  proceed  upon  the  ground,  that,  where  the  federal  court  is 
proceeding  in  the  due  exercise  of  its  jurisdiction,  it  has  power 
to  regulate  and  control  its  own  judgments,  and  carry  them  into 
execution,  and  power  to  maintain  its  own  jurisdiction,  and  pro- 
tect either  plaintiff  or  defendant  therein,  in  respect  of  the 
subject-matter  thus  lawfully  within  its  jurisdiction,  and,  by  an 
ancillary  suit,  to  call  in  parties  for  those  purposes,  whether 
their  citizenship  would  have  authorized  an  original  suit  against 
them  by  the  ])laintiff  in  such  ancillary  proceeding  or  not. 
The  present  is  no  such  case.  Here  the  original  suit  was  for 
the  dissolution  of  a  co-partnership,  and  the  adjustment  of  the 
rights  of  the  complainant  and  Dorr.  In  that  the  Marble  Com- 
pany had  no  interest,  and  they  have  done  nothing  to  prevent 
that  suit  from  proceeding  to  its  termination  according  to  its 
intent  and  purpose.  The  cause  of  action  against  the  Marble 
Company  is  its  refusal  to  perform  a  contract  made  with  the 
firm,  and  the  decree  sought  is  the  specific  performance  of  that 
contract.  To  grant  the  relief  might  be  useful  to  the  parties  to 
the  original  bill,  but  it  has  no  legal  connection  with  the  cause 
of  action  therein,  and  is  in  no  sense  necessary  to  the  full  exer- 
cise of  the  jurisdiction  of  the  court.  It  is  not  in  any  sense  a 
continuation  of  the  original  suit,  but  an  attempt  to  add  a  new 
cause  of  action  against  a  new  party. 

This,  bill  must  be  dismissed  as  to  defendants,  the  Sutherland 
Falls  Marble  Company,  with  costs. 


NATIONAL    BANK    V.    INSURANCE    COMl'ANY.  lUl 

NATIONAL  BANK  v.  INSURANCE  COMPANY. 

(14  Otto,  54-77.     1881:) 

Appeal  IVoin  U.  S.  Circuit  Court,  District  of  Maryland. 

Opinion  by  Mr.  Justice  Matthews. 

It  is  also  a.ssigned  for  error  that  the  appellee  failed  to  set 
down  for  argument  or  traverse  the  {)leas  of  the  defendant,  as 
required  by  the  thirty -eighth  equity  rule;  but  the  pleas  in 
this  case  were  irregularly  tiled  and  defective,  under  the  thirty- 
first  rule,  for  lack  of  the  affidavit  of  the  defendant  that  they 
were  not  interposed  for  delay,  and  of  the  certihcate  of  counsel 
that  they  were,  in  his  oi)ini()n,  well  founded  in  point  of  law, 
and  may  well  have  been  disregarded  on  that  account.  Be- 
sides, the  second  and  third  pleas  were  such  only  in  form,  as 
they  merely  alleged  matters  of  law  and  not  of  fact.  "The 
ofhce  of  a  plea,"  said  Lord  Eldon,  in  Rowe  v.  Teed,  15  Ves. 
Jr.,  372,  "generally,  is  uot  to  deny  the  equity,  but  to  bring 
forward  a  fact  which,  if  true,  displaces  it."  The  first  plea  is 
open  to  the  same  objection  ;  for,  although  it  appears  to  nega- 
tive the  averment  of  a  matter  of  fact  essential  to  the  com- 
plainant's case, — that  he  was  a  creditor  of  the  defendant, — 
3'et  really  it  merel}'  denies  the  conclusion  of  law,  to  be  drawn 
from  the  whole  of  the  case  as  stated  in  the  bill.  Every  mat- 
ter, therefore,  covered  by  the  pleas  was  nece.ssai'ily  embraced 
in  the  hearing  upon  the  bill,  answer  and  proofs.  There  was 
no  issue  tendered  on  matter  of  fact  that  was  left  undecided, 
and  no  matter  of  law  affecting  the  merits  that  was  not  ad- 
judged. 

It  is  also  assigned  for  error  that  the  complainant  fjiiled  to 
file  a  rei)lication  to  the  answer.  Leave  to  do  .so  was  granted 
by  the  court,  on  the  complainant's  motion  ;  and  although  the 
transcript  does  not  show  that  it  was  done,  the  parties  went  to 
the  hearing  as  if  it  had  been  done,  submitting  the  case  upon 
the  proofs  which  had  been  taken,  as  though  a  formal  issue 
had  been  perfected.  The  same  objection  was  made  in  the 
cases  of  Clements  v.  Moore,  6  Wall.,  299,  and  Laber  v.  Cooper, 
7  id.,  505,  under  circumstances  not  distinguishable  from  the 
present,  and  for  the  reasons  there  stated  it  is  overruled. 

The  absence  of  any  answer  by  Dillon,  and  the  want  of  an 
issue  upon  it,  is  also  assigned  for  error.  The  transcript  shows 
that  an  answer  had  been  filed  by  Dillon,  but  had  been  lost  or 
mislaid.     This  fact  having  been  called  to  the  attention  of  the 


192  EQUITY    PLEADING. 

court  below,  before  the  hearing,  the  circuit  judge  announced 
that  he  would  not  proceed  with  the  hearing  without  the 
answer,  if  the  respondent's  solicitor,  then  present,  objected  to 
the  hearing  for  that  reason.  No  objection  was  made,  and  the 
hearing  properly  proceeded.  For  aught  that  appears,  Dillon's 
answer  may  have  been  a  confession  of  the  truth  of  the  allega- 
tions of  the  bill.     We  find  no  error  in  the  record. 

Decree  affirmed. 

[Note. — Only  so  nmch  of  this  case  is  reported  as  relates  to  Equity  Pleading 
and  Practice.] 

MELLUS  V.  THOMPSON. 
(Circuit  Court  for  Massachusetts:  1  Clifibrd,  125-135.     1858.) 

Statement  of  Facts. — Suit  was  brought  against  one  How- 
ard, a  resident  of  California,  who,  after  answering,  died,  and 
this  bill  of  revivor  was  filed  against  liis  administrators. 
Service  was  made  upon  one  of  the  administrators,  who  ap- 
peared and  pleaded  to  the  jurisdiction,  alleging  the  residence 
of  Howard  in  California,  and  that  he,  the  administrator,  had 
never  been  appointed  administrator  by  any  court  of  ]\Iassa- 
chu  setts. 

Opinion  by  Clifford,  J. 

When  a  plea  to  a  bill  in  equity  is  set  down  for  hearing 
under  the  thirteenth  additional  rule,  as  in  this  case,  without 
being  rej^lied  to  by  the  complainant,  all  the  facts  therein 
alleged  which  are  well  pleaded  must  be  considered  as  admitted 
for  the  purpose  of  determining  the  question  whether  the  plea 
constitutes  a  sufficient  answer  to  the  suit.  Accordingly  the 
complainant  insists,  notwithstanding  the  present  respondent  is 
not  a  citizen  of  or  resident  in  this  state,  and  was  never  ap- 
pointed executor  of  the  last  will  and  testament  of  the  dece- 
dent by  the  state  courts  of  this  district,  that  he  is  entitled  to 
revive  the  suit  against  him  by  virtue  of  his  appointment  as 
such  executor  by  the  court  of  probate  for  the  county  of  San 
Francisco  in  the  state  of  California,  where  he  was  domiciliated 
at  the  time  of  his  appointment.  All  of  the  transactions  for 
which  relief  is  sought  took  place  in  California,  and  all  of  the 
assets  belonging  to  the  estate  of  the  decedent  are  in  that  juris- 
diction. 

Certain  rules  and  principles  respecting  the  rights  and  powers 
of  executors  and   administrators  appear  to  be  so  fully  settled 


MKi.i.rs  V.    riioMrsoN.  li)3 

that  they  ou^lit  not  to  he  regarded  as  the  jnopcr  suhjects  of 
dispute.  One  is,  that  an  execiitoi'  or  achiiiiiistrator,  deriving 
his  authority  solely  from  another  state/  is  not  lial)le  to  ho  sued 
in  his  official  character  in  this  state  for  assets  lawfully  received 
by  him  in  the  jurisdiction  where  he  was  ai)i)ointed,  under  and 
in  virtue  of  the  original  letters  of  adniinistration.  Every 
grant  of  administration  is  strictly  confined  in  its  authority 
and  operation  to  the  limits  of  the  territory  of  the  government 
which  grants  it,  and  it  is  well  settled  that  it  does  not  extend  to 
other  political  jurisdictions.  As  matter  of  right  it  cannot  con- 
fer any  authority  to  collect  by  suit  the  assets  of  the  deceased  in 
another  state ;  and  whatever  operation  is  allowed  beyond  the 
jurisdiction  of  the  state  where  it  is  granted  is  mere  matter 
of  comity,  which  every  other  state  is  at  liberty  to  accord 
or  withhold,  according  to  the  policy  of  its  own  laws  and 
with  reference  to  the  interests  of  its  own  citizens.  Vaughan 
V.  Northup,  15  Pet.,  1  Bond  v.  Graham,  1  Hare,  Ch.,  482  ; 
Spratt  V.  Harris,  4  Hagg.  Ecc.,  405;  Price. u  Dewhurst,  4 
My.  &  Cr.,  7G  ;  Whyte  v.  Rose,  3  Ad.  &  E.,  507,  43  Eng.  C.  L., 
842.  Executors  and  administrators  are  bound  in  general  to 
account  exclusivel}'  for  all  the  assets  they  receive,  under  and 
in  virtue  of  their  administration,  to  the  proper  tribunals  of 
the  government  from  which  they  derive  their  authority  ;  and 
it  was  expressly  determined  by  the  supreme  court  in  the  case 
of  ^^aughan  v.  Northup,  that  the  tribunals  of  other  states  have 
no  right  to  interfere  with  the  assets  which  come  to  their  pos- 
session in  the  jurisdiction  where  they  are  appointed,  or  to  con- 
trol tlieir  ap{)lication.  Repeated  decisi(ms  have  affirmed  the 
principle  that  no  suit  can  be  maintained  by  or  against  an  ex- 
ecutor or  administrator,  in  his  official  capacity,  in  the  courts 
of  any  other  state  except  that  from  which  he  derived  his  au- 
thority, in  virtue  of  the  probate  and  letters  testamentary  or 
the  letters  of  administration  there  granted  to  him.  Een- 
wick  V.  Sears,  1  Cranch,  250;  Dixon  r.  Ramsay,  3  C'ranch, 
310;  Kerr  v.  Moon,  0  Wheat.,  5G5  Armstrong  v.  Lear,  12 
Wheat.,  160.  Some  attempts  have  been  made  by  courts  of 
justice  in  one  or  two  jurisdictions  to  limit  and  qualify  the  gen- 
eral rule  laid  down  in  the  earlier  cases,  but  without  success,  as. 
appears  from  numerous  decisions  both  in  this  country  and  in 
England  ;  and  it  may  now  bo  regarded  as  the  established  doc- 
trine, that  an  executor  or  administrator  appointed  in  one  state 
cannot  sue  or  be  sued  in  his  official  character  for  any  debts; 
13 


1J4  EQUITY    PLEADING. 

due  to  or  from  the  estate  under  bis  administration  in  any 
other  state,  unless  he  is  first  appointed  as  such  administrator 
or  executor  in  the  state  where  the  suit  is  brought. 

These  principles,  so  far  as  respects  the  maintaining  of  an 
original  suit,  are  not  controverted  by  the  counsel  for  the  com- 
plainant, and  they  have  been  so  repeatedly  affirmed  by  courts 
of  the  highest  respectability,  that  it  seems  unnecessary  to 
multiply  authorities  upon  the  subject.  That  letters  testa- 
mentary or  of  administration  granted  abroad,  without  new 
probate  authority,  give  no  right  to  sue  or  be  sued,  is  a  [)rin- 
ciple  almost  universally  acknowledged  by  courts  of  justice. 
It  was  so  held  in  Carter  v.  Crosts,  Godb.,  33,  decided  in  1585, 
and  since  that  period  has  been  the  received  doctrine  in  most 
jurisdictions  to  the  present  time.  Tourton  v.  Flower,  3  P.  W., 
366;  2  Kent's  Com.  (9th  ed.),  563  and  note  c ;  Hutchins  v. 
State  Bank,  13  Met.,  421  ;  Story,  Confl.  L.,  §  513;  Tvler  t;. 
Bell,  2  My.  &  Cr.,  110;  Whyte  v.  Eose,  3  Ad.  &  E.  (N.  S.), 
507,  43  Eng.  C.  L.,  482. 

But  attention  is  drawn  to  the  thirty-first  section  of  the  act 
of  congress  of  the  24tli  of  September,  1789,  and  it  is  insisted 
that  the  original  suit  in  this  case  may  be  revived  against  the 
present  respondent,  within  the  principles  of  that  provision. 
It  provides  that  wdiere  any  suit  shall  be  depending  in  any 
court  of  the  United  States,  and  either  of  the  parties  shall  die 
before  final  judgment,  the  executor  or  administrator  of  such 
deceased  party  who  was  plaintiff,  petitioner  or  defendant,  in 
case  the  cause  of  action  doth  by  law  survive,  shall  have  full 
power  to  prosecute  or  defend  any  such  suit  or  action  until  final 
judgment :  and  the  defendant  or  defendants  are  hereby  obliged 
to  answer  thereto  accordingly  ;  and  the  court  before  whom  such 
cause  may  be  depending  is  hereby  empowered  and  directed  to 
hear  and  determine  the  same,  and  to  render  judgment  for  or 
against  the  executor  or  administrator,  as  the  case  may  require. 
Further  provision  is  also  made,  in  case  such  executor  or  admin- 
istrator shall  refuse  to  become  a  party  to  the  suit,  that  the 
court  may  render  judgment  against  the  estate  of  the  deceased 
party  in  the  same  manner  as  if  the  executor  or  administrator 
had  voluntarily  made  himself  a  party  to  the  suit. 

At  common  law,  the  death  of  either  party  before  judgment 
in  real  and  personal  actions  abated  the  writ ;  and  it  was  held 
by  the  supreme  court,  in  Green  v.  Watkins,  6  Wheat,  260, 
that  the  provision   contained  in  that   section   was  necessary 


MELLUS    V.    THOMPSON,  105 

to  enable  the  action  to  be  prosecuted  against  the  repre- 
sentatives of  the  deceased  party  in  cases  where  tlie  cause 
of  action  survived.  .  In  the  case  of  Macker  r.  Thomas, 
7  Wheat.,  530,  the  same  court  held  that  this  provision  was 
clearly  confined  to  jiersonal  actions,  assigning  as  the  reason 
for  the  conclusion  that  the  jiowcr  to  prosecute  or  defend 
is  given  to  the  executor  ov  administrator  of  the  deceased 
party,  and  not  to  the  lieir  or  devisee.  Neither  of  those  cases 
precisely  touches  the  question  under  consideration,  for  the 
reason  that  the  abatement  of  a  suit  in  equity  by  the  death  of 
a  party,  in  cases  where  the  cause  of  action  survives,  docs  not 
amount  to  an  unconditional  determination  of  tiie  suit.  Unlike 
the  abatement  of  a  suit  at  common  law,  the  death  of  one  of 
the  parties  to  a  bill  in  equity,  before  a  final  decree,  only  has 
the  effect  in  general  to  suspend  the  proceeding  in  the  suit,  but 
does  not  oj»crate  to  extinguish  the  right  of  further  |)rosecution, 
provided  the  proper  representatives  of  the  deceased  party 
seasonably  appear  and  prosecute  the  same  by  bill  of  revivor. 
Bills  of  revivor,  strictly  so  called,  lie  only  against  the  persons 
who  are  the  proper  representatives  of  the  deceased  party.  If 
the  suit  has  respect  to  the  personal  assets  only  of  the  deceased 
party,  his  executor  or  administrator  is  the  projier  person  by  or 
against  whom  the  h\\\  of  revivor  should  be  brought;  but  if 
the  suit  has  respect  to  the  real  estate  of  the  deceased,  and  the 
cause  of  action  survives,  then  the  heirs  of  the  deceased  party 
are  the  proper  persons  to  institute  and  prosecute  the  bill  of 
revivor.     Story,  Eq.  Plead.  ((Jth  ed.),  §  54. 

Applying  these  principles  to  the  present  case,  there  would 
be  no  difficulty  in  sustaining  the  views  of  the  complainant  but 
for  the  fact  that  the  respondent  in  the  bill  of  revivor  has 
never  been  a))pointed  an  executor  of  the  last  will  and  testa- 
ment of  the  decedent  by  the  tribunals  of  IVIassachusetts.  His 
appointment,  as  the  plea  shows,  emanated  from  the  court  of 
probate  for  the  county  of  San  Francisco,  in  the  state  of  Cali- 
fornia ;  and  if  it  be  true,  as  was  exjiressly  held  by  the  supi-eme 
court  in  A^aughan  v.  Northup,  15  Pet.,  5,  that  the  grant  of 
administration  upon  the  estate  of  a  deceased  person  is  sti'ietly 
confined  in  its  authority  and  operations  to  the  limits  of  the 
territory  of  the  government  which  grants  it,  then  it  follows,  as 
it  would  seem,  that  the  a])pointment  of  the  resjiondeiit  as 
executor  by  the  tribunals  of  the  state  of  ("alil'onii;i  cjmnot 
have  the  effect  to  confer  u])on  him  that  chai'actci'  in  the  couits 


10()  EQUITY    PLEADING. 

of  another  state.  Federal  laws  do  not  make  provision  for  the 
api)ointn]ent  of  executors  or  administrators.  They  onl}'  recog- 
nize the  existence  of  such  appointments  under  the  local  law. 
Executors  and  administrators  are  recognized  in  the  thirty-first 
section  of  the  judiciary  act  now  under  consideration,  but  they 
are  such  as  have  received  their  appointments,  not  from  federal 
authority,  but  from  the  tribunals  of  the  state  where  tlie  suit 
was  pending  at  the  time  the  abatement  took  place.  Accord- 
ingly it  was  held  by  the  supreme  court,  in  Aspden  v.  Nixon,  4 
How.,  497,  tliat  executors  and  administrators  appointed  in  one 
state  cannot  be  known  in  another  state  as  the  representatives 
of  the  estate  of  a  deceased  person,  for  the  purpose  of  prosecut- 
ing or  defending  a  pending  suit.  This  principle  was  subse- 
quently affirmed  by  the  same  court  in  the  case  of  Stacy  v. 
Thrasher,  G  How.,  58,  in  still  more  decisive  language.  Mr. 
Justice  Grier  said,  in  the  case  last  named,  that  an  administra- 
tor receives  his  authority  from  the  ordinary  or  other  officer  of 
the  government  where  the  goods  of  the  intestate  are  situate. 
But  coming  into  such  possession  by  succession  to  the  intestate, 
and  incumbered  with  the  duty  to  pay  his  debts,  he  is  con- 
sidered in  law  as  in  privity  with  him,  and  therefore  bound  or 
estopped  by  a  judgment  against  him.  Yet  his  representation 
of  his  intestate  is  a  qualified  one,  and  extends  not  beyond  the 
assets  of  which  the  ordinary  had  jurisdiction.  He  therefore 
cannot  do  any  act  to  affect  assets  in  another  jurisdiction,  as 
his  authority  camiot  be  more  extensive  than  that  of  the  gov- 
ernment from  whom  he  received  it,  and  the  courts  of  anotlier 
state  will  not  acknowledge  him  as  a  representative  of  the  de- 
ceased or  notice  his  letters  of  administration.  Borden  v. 
Borden,  5  Mass.,  67  ;  Pond  v.  Makepeace,  2  Met..  114;  Chap- 
man V.  Fish,  6  Hill,  554. 

Similar  views  were  also  held  by  the  same  court  in  Hill  v. 
Tucker,  13  How.,  467,  in  which  the  preceding  cases  were 
cited  and  approved.  Nevertheless,  circuit  courts  have  juris- 
diction of  suits  by  or  against  executors  or  administrators,  if 
they  are  citizens  of  different  states,  in  certain  cases  where  they 
are  the  real  parties  in  interest  before  the  court,  and  have  sue-, 
ceeded,  by  virtue  of  their  appointment,  to  all  the  rights  and 
interests  of  their  testators  or  intestates,  as  in  suits  upon  prom- 
issory notes  given  by  the  deceased  in  certain  special  cases,  or 
in  bills  of  equity  for  an  account.  Chappedelaine  y.  Dechenaux, 
4  Cranch.,  306^  Childres  v.  Emory,  8  Wheat.,  669.     Both  of 


MKLLUS    V.    TIKi.MrsoN.  I'.^T 

those  suits,  however,  were  eoiiinieiieed  in  the  (lislriet  eonsti- 
tuted  within  the  limits  of  the  pohtical  jurisdiction  or  state 
from  which  the  defendants  derived'  their  authority.  Civil 
suits  may  be  brought  a<j:;ainst  })ersons  in  their  individual 
capacity,  eitliei'  in  the  district  whereof  they  are  inhabitants  or 
in  wdiicli  they  shall  be  found  at  the  time  of  serving-  the  writ. 
1  Stat,  at  Large,  p.  71*.  That  provision,  so  far  as  the  latter 
clause  of  it  is  concerned,  does  not  aj)ply  to  executoi's  and  ad- 
ministrators, for  the  reason  that  their  authority  is  limited  by 
the  territory  of  the  state  from  which  it  is  derived  ;  and  it  has 
been  expressly  held  by  the  supreme  court,  in  i'ei)eated  in- 
stances, that  they  cannot  be  sued  in  any  district  out  of  tiie 
state  from  which  their  authority  ])roceeds. 

It  was  so  distinctly  held  in  ^'aughan  r.  Northup,  15  J'et.,  1, 
and  such,  as  before  remarked,  is  the  settled  law^,  both  in  this 
country  and  in  England.  Fenwick  v.  Sears,  1  Cranch.,  259  ; 
Dixon  V.  Ramsay,  3  Cranch.,  319  ;  Kerr  v.  Moon,  9  Wheat., 
565  ;  Asj)den  v.  Nixon,  4  How.,  497  ;  Stacy  r.  Thrasher,  (> 
How.,  58;  Hill  r.  Tucker,  13  How.,  407.  But  I'eliance  is 
placed  upon  the  case  of  Clark  v.  Mathewson,  12  Pet.,  170,  as 
asserting  a  different  doctrine.  On  a  careful  examination  of 
the  facts  of  that  case,  it  does  not  api)ear  to  warrant  any  such 
conclusion.  It  was  a  bill  in  equity,  brought  by  a  citizen  of 
the  state  of  Connecticut  against  a  citizen  of  the  state  of  llhode 
Island,  for  an  account  of  certain  transactions  set  forth  in  the 
bill,  with  a  pray  en-  for  general  relief.  After  the  cause  was  at 
issue,  it  was  by  the  agreement  of  the  parties  ordered  by  the 
court  to  be  referred  to  a  master  to  take  an  account,  and  ])cnd- 
ing  the  proceedings  before  the  master  the  conij»lainant  died. 
Admini.stration  upon  Ins  estate  was  taken  out  by  one  John  II. 
Clark,  in  the  state  of  Rhode  Island. 

By  the  laws  of  the  state,  no  person  not  a  resident  thereof 
can  take  out  lettei's  of  administration  ;  and  such  adniinisti'a- 
tion  is  indispensable  to  the  prosecution  or  defen.'^e  of  any  suit 
in  the  state,  in  right  of  tlie  estate  of  the  intestate.  Clark  filed 
a  bill  of  revivor  in  the  circuit  court  of  Rhode  Islan<l  against 
the  defendants  in  tlie  original  suit,  in  which  he  alleged  that 
they  were  citizens  of  that  state  ;  and  he  also  alleged  himself 
to  be  a  citizen  of  the  same  state,  and  administrator  of  the 
intestate.  Judge  Story  dismissed  the  bill  ol"  revivor,  on  the 
ground  that  it  was  a  suit  between  citizens  ol'  the  same  stalt'. 
Whereu[)on  the  complainant  ap[)ealed  to  the  supi'cme  court, 


198  EQUITY    PLEADING. 

where  the  decree  of  the  circuit  court  was  reversed,  with  the 
concurrence  of  the  circuit  judge  ;  and  it  was  held  that  the  bill 
of  revivor  was  a  mere  continuance  of  the  original  suit,  and 
that,  inasmuch  as  the  parties  to  the  original  bill  were  citize)ns 
of  different  states,  the  jurisdiction  of  the  court  completely 
attached  to  the  controversy,  and  could  not  be  divested  by  tlie 
fact  that  the  administrator  of  the  complainant  subsequently 
appointed  was  a  citizen  of  the  same  state  with  the  respondents. 
That  princi|)le  is  entirely  consistent  with  the  determination 
previously  made,  that  the  removal  of  the  original  plaintiff, 
after  the  commencement  of  the  suit,  into  the  same  state  with 
the  respondent,  does  not  divest  the  jurisdiction  of  the  court,  if 
they  were  citizens  of  different  states  at  the  time  the  suit  was 
commenced.  Morgan  v.  Morgan,  2  Wheat.,  290  ;  Mollan  v. 
Torrance,  9  Wheat.,  537  ;  Dunn  v.  Clarke,  8  Pet.,  1.  Besides 
it  will  be  perceived  that  the  suit  in  that  case  was  revived  in  a 
circuit  court  constituted  and  having  jurisdiction  in  the  state 
from  which  the  administrator  derived  his  authority  ;  and  con- 
sequently the  decision  of  the  court  is  perfectly  consistent  with 
all  the  previous  and  subsequent  adjudications  upon  the  sub- 
ject. 

It  was  objecied  in  that  case  that  the  jurisdiction  could  not 
be  sustained,  because  the  complainant  and  respondent  in  the 
bill  of  revivor  were  citizens  of  tiie  same  state  ;  but  the  su- 
preme court  held  that  congress,  in  the  provision  of  the  judi- 
ciary act  under  consideration,  treated  the  revivor  of  the  suit 
by  or  against  the  representativey  of  the  deceased  as  a  matter  of 
right,  and  as  a  mere  continuation  of  the  original  suit,  without 
any  distinction  as  to  the  citizenship  of  the  representative, 
whether  he  belonged  to  the  same  state  where  the  cause  was  de- 
pending, or  to  another  state.  This  last  remark  was  made  by 
the  court  in  answer  to  the  objection  that  both  parties  in  the  bill 
of  revivor  belonged  to  the  same  state,  and  without  any  reference 
whatever  to  the  question  whether  an  executor  or  administra- 
tor appointed  only  by  the  probate  court  of  another  state  could 
be  made  a  party  to  such  proceeding  without  a  new  appoint- 
ment. For  these  reasons  I  am  of  the  opinion  that  the  case  of 
Clark  V.  Mathewson  does  not  touch  the  question  under  considera- 
tion. Such  being  the  fact,  the  proceeding  stands  without  any 
authority  to  support  it,  and  must  be  determined  upon  general 
principles.  All  of  the  reasons  assigned  in  the  adjudged  cases 
to  show  that  an  executor  or  administrator  cannot  be  made  an 


MELLUS    V.    THOMPSON.  10*.) 

original  delendant,  in  a  state  other  than  the  one  from  which 
he  derives  his  authorit}',  apply  with  equal  force  against  mak- 
ing him  a  respondent  to  a  suit  in  equ'ity  abated  by  the  d(>ath 
of  his  testator  or  intestate.  He  has  no  official  existence  in 
such  other  state,  and  possesses  no  })ower  there  which  he  can 
exercise  in  his  official  character. 

Decided  cases  have  established  the  doctrine  that  thcnntlior- 
it}'  gi'anted  to  him  is  strictly  confined  to  the  limits  of  the  state 
from  which  it  was  derived  ;  and  if  so.  then  it  would  seem  to 
follow  that  any  other  person  might  be  made  a  party  defendant 
to  the  bill  of  revivor  with  equal  propriety,  and  for  the  reason 
that,  while  here,  in  a  jurisdiction  where  his  authority  is  not 
acknowledged,  he  is  not  in  any  legal  sense  the  representative 
of  the  estate  of  his  testator.  lie  cannot  be  liable  de  bonis 
propriis  and  as  there  are  no  assets  in  this  jurisdiction  there 
can  be  nothing  on  which  a  judgment  would  operate.  Relief 
is  prayed,  not  only  for  the  payment  of  money,  but  that  con- 
veyances of  real  estate  situated  in  California  may  be  set  aside, 
and  that  the  same  real  estate  may  be  conveyed  to  the  com- 
plainant. Whether  executors,  as  such,  have  authority,  under 
the  laws  of  California,  to  convey  real  estate  does  not  appear, 
and  is  at  least  very  doubtful.  But  if  it  were  less  so,  it  is  diffi- 
cult to  see  by  what  warrant  this  court  can  recognize  the 
respondent  as  the  executor  of  the  last  will  and  testament  of 
the  decedent,  while  it  appears  that  he  is  not  such  by  the  local 
law  of  the  district  in  which  the  suit  is  pending,  and  that  there 
are  no  assets  of  the  estate  within  this  jurisdiction.  Counsel 
would  hardly  contend  that  a  bill  of  revivor  could  be  main- 
tained against  an  executor  or  administrator  appointed  in  Eng- 
land, wnthout  new  probate  of  the  letters  testamentary,  or  new 
letters  of  administration,  in  the  state  tribunals  of  the  district 
where  the  original  suit  was  brought. 

Nothing  is  better  settled  than  the  rule  that  a  person  claim- 
ing under  a  will  proved  in  one  state  cannot  intermeddle  with 
or  sue  for  the  effects  of  a  testator  in  another  state,  unless  the 
will  be  first  proved  in  that  other  state,  or  unless  he  be  })cr- 
mitted  so  to  do  by  some  law  of  that  state  authorizing  such  a 
proceeding.  He  cannot  sue  for  the  personal  estate  of  the  tes- 
tator out  of  the  jurisdiction  of  the  power  by  which  the  letters 
of  administration  were  granted,  and  upon  the  same  princi})le 
and  for  the  same  reason  he  cannot  be  sued  or  com[)(>lled  to  de- 
fend a  suit  in  any  jurisdiction  to  which  his  authority  as  exccu- 


2U0  EQUITY    PLKADING. 

tor  docs  not  extend.  Doe  v.  McFarlaiid,  9  Craiich,  151  ;  Kerr 
V.  Moon,  9  Wheat.,  571.  Devisees  or  heirs  would  not  be  bound 
by  the  decree,  if  one  were  made,  so  far  as  the  real  estate  is  con- 
cerned, for  the  reason  that  they  are  not  made  parties  to  the 
bill  of  revivor,  and  have  had  no  notice  of  the  proceeding.  It 
is  obvious,  therefore,  if  the  court  should  render  a  decree  that 
the  complainant  is  entitled  to  the  relief  prayed  for,  the  respon- 
dent in  the  bill  of  revivor  would  have  no  authority  to  comply 
with  the  order  of  the  court,  and  the  court  would  have  no 
power  to  enforce  its  mandate.  In  view  of  all  the  circum- 
stances disclosed  in  the  case,  I  am  of  the  opinion  that  the  i)lea 
to  the  jurisdiction  of  the  court  is  sufKcient,  and  that  the 
demurrer  must  be  overruled. 


chaptp:k  VIII. 

HEARING  OX  BILL  AM)  ANSWER TAKING    TESTIMONY    ON    ISSUE 

JOINED REFERENCE  TO  MASTER  AND  PROCEED- 
INGS THEREON WITNESSES. 

liule  a  7' 

After  the  cause  is  at  issue,  commissions  to  take  testimony  may 
be  taken  out  in  vacation  as  well  as  in  term,  jointly  ])v  l^oth 
parties,  or  severally  by  either  party,  upon  interrogatories  filed 
by  tlie  party  taking  out  the  same  in  the  clerk's  office,  ten  clays' 
notice  thereof  being  given  to  the  adverse  party  to  file  cross- 
interrogatories  before  the  issuing  of  the  commission  ;  and  if  no 
cross-interrogatories  are  filed  at  the  expiration  of  the  time  the 
commission  may  issue  ex  parte.  In  all  cases  the  commissioner 
or  commissioners  may  l)e  named  by  the  court  or  l)yajudge 
thereof;  and  the  presiding  judge  of  the  court  exercising  juris- 
diction may,  either  in  term  time  or  in  vacation,  vest  in  the 
clerk  of  the  court  general  power  to  name  commissioners  to 
take  testimony. 

Either  party  may  give  notice  to  the  other  that  he  desires 
the  evidence  to  be  adduced  in  the  cause  to  be  taken  orall}',  and 
thereupon  all  the  witnesses  to  be  examined  shall  be  exam- 
ined before  one  of  the  examiners  of  the  court,  or  before  an 
examiner  to  be  specially  appointed  by  the  court.  The  exam- 
iner, if  he  so  request,  shall  be  furnished  with  a  copy  of  the 
pleadings. 

Such  examination  shall  take  place  in  the  presence  of  the 
parties  or  their  agents,  by  their  counsel  or  solicitors,  and  the 
witnesses  shall  be  subject  to  cross-examination  and  re-exami- 
nation, all  of  which  shall  be  conducted  as  near  as  may  be  in 
the  mode  now  used  in  common- law  courts. 

(  201  ) 


202  •  EQUITY    PLEADING. 

The  depositions  talceii  upon  such  oral  examination  shall  be 
reduced  to  writing  by  the  examiner,  in  the  form  of  question 
put  and  answer  given  ;  provided,  that,  l.)y  consent  of  parties, 
the  examiner  may  take  down  the  testimony  of  any  witness  in 
the  form  of  narrative. 

At  the  request  of  either  party,  with  reasonable  notice,  the 
deposition  of  any  witness  shall,  under  the  direction  of  the 
examiner,  be  taken  down  either  by  a  skillful  stenographer  or 
by  a  skillful  typewriter,  as  the  examiner  may  elect,  and  when 
taken  stenographically  shall  be  put  into  typewriting  or  other 
writing  ;  provided,  that  such  stenographer  or  typewriter  has 
been  appointed  by  the  court,  or  is  approved  by  both  parties. 

The  testimony  of  each  witness,  after  such  reduction  to  writ- 
ing, shall  be  read  over  to  him  and  signed  by  him  in  the- 
presence  of  the  examiner  and  of  such  of  the  parties  or  coun- 
sel as  may  attend  ;  provided,  that  if  the  witness  shall  refuse  to 
sign  his  deposition  so  taken,  then  the  examiner  shall  sign  the 
same,  stating  upon  the  record  the  reasons,  if  any,  assigned  by 
the  witness  for  such  refusal. 

The  examiner  may,  upon  all  examinations,  state  any  special 
matters  to  the  court  as  he  shall  think  fit ;  and  any  question  or 
questions  which  may  be  objected  to  shall  be  noted  by  the 
examiner  upon  the  deposition,  but  he  shall  not  have  power  to 
decide  on  the  competency,  materiality,  or  relevancy  of  the 
questions ;  and  the  court  shall  have  power  to  deal  with  the 
costs  of  incompetent,  immaterial,  or  irrelevant  depositions,  or 
parts  of  them,  as  may  be  just. 

In  case  of  refusal  of  witnesses  to  attend,  to  be  sworn,  or  to 
answer  any  question  put  by  the  examiner,  or  by  counsel  or 
solicitor,  the  same  practice  shall  be  adopted  as  is  now  prac- 
ticed with  respect  to  witnesses  to  be  produced  on  examination 
before  an  examiner  of  said  court  on  written  interrogatories. 

Notice  shall  be  given  by  the  respective  counsel  or  solicitors 
to  the  opposite  counsel  or  solicitors,  or  parties,  of  the  time  and 
place  of  the  examination,  for  such  reasonable  time  as  the 
examiner  may  fix  by  order  in  each  cause. 


EQUITY    PLKADING.  203 

When  the  examination  of  witnesses  before  the  examiner  is 
concluded,  the  original  depositions,  authenticated  by  the 
signature  of  the  exaniiui'r.  shall  be  transmitted  by  iiini  to  the 
clerk  of  the  court,  to  be  tliere  tiled  of  record,  in  tiie  same  mode 
as  prescribed  in  section  805  of  the  Kevised  Statutes. 

Testimony  may  be  taken  on  commission  in  the  usual  way, 
by  written  interrogatories  and  cross-interrogatories,  on  motion 
to  the  court  in  term  time,  or  to  a  judge  in  vacation,  for  special 
reasons,  satisfactory  to  the  court  or  judge. 

Where  the  evidence  to  be  adduced  in  a  cause  is  to  be  taken 
orall}^  as  before  provided,  the  court  may,  on  motion  of  either 
party,  assign  a  time  within  which  the  complainant  shall  take 
his  evidence  in  support  of  the  bill,  and  a  time  thereafter 
within  which  the  defendant  shall  take  his  evidence  in  de- 
fense, and  a  time  thereafter  within  which  tlie  complainant 
shall  take  his  evidence  in  reply  ;  and  no  further  evidence 
shall  be  taken  in  the  cause,  unless  by  agreement  of  the  parties 
or  by  leave  of  court  first  obtained,  on  motion  for  cause  shown. 

The  expense  of  the  taking  down  of  depositions  by  a  sten- 
ographer and  of  putting  them  into  typewriting  or  other  writ- 
ing shall  be  })aid  in  the  first  instance  by  the  party  calling  the 
witness,  and  shall  be  im})osed  by  the  court,  as  part  of  the 
costs,  upon  such  party  as  the  court  shall  adjudge  should  ulti- 
mately bear  them. 

Upon  due  notice  given  as  })rescribed  by  previous  order,  the 
court  may,  at  its  discretion,  permit  the  whole,  or  any  specific 
part,  of  the  evidence  to  be  adduced  orally  in  open  court  on 
final  hearing. 

Itule  71. 

The  last  interrogatory  in  the  written  interrogatories  to  take 
testimony  now  commonly  in  use  shall  in  the  future  be  altered, 
and  stated  in  substance  thus:  "  Do  you  know,  or  can  you  set 
forth,  any  other  matter  or  thing  which  may  be  a  benefit  or 
advantage  to  the  parties  at  issue  in  this  cause,  or  either  of 
them,  or  that  may  be  material  to  the  subject  of  this  your  ex- 


204  EQUITY    PLEADING. 

aniiiiation,  or  the  matters  in  (question  in  this  cause?     If  yea, 
set  forth  tlie  same  fully  and  at  large  in  your  answer." 

Hide  as. 

Testimony  may  also  be  taken  in  tlie  cause,  after  it  is  at 
issue,  by  deposition,  according  to  the  act  of  Congress.  But  in 
such  case,  if  no  notice  is  given  to  the  adverse  party  of  the 
time  and  place  of  taking  the  deposition,  he  shall,  upon  motion 
and  affidavit  of  the  fact,  be  entitled  to  a  cross-examination  of 
the  witness,  either  under  a  commission  or  by  a  new  deposition 
taken  under  the  acts  of  Congress,  if  a  court  or  judge  thereof 
shall,  under  all  the  circumstances,  deem  it  reasonable. 

Bule  (iU. 

Three  months,  and  no  more,  shall  be  allowed  for  the  taking 
of  testimony  after  the  cause  is  at  issue,  unless  the  court,  or  a 
judge  thereof,  shall,  upon  special  cause  shown  by  either  party, 
enlarge  the  time  ;  and  no  testimony  taken  after  such  period 
shall  be  allowed  to  be  read  in  evidence  at  the  hearing.  Im- 
mediately upon  the  return  of  tlie  commissions  and  depositions 
containing  the  testimony  into  the  clerk's  oflice,  publication 
thereof  may  be  ordered  in  the  clerk's  office,  by  any  judge  of 
the  court,  upon  due  notice  to  the  parties,  or  it  may  be  en- 
larged, as  he  may  deem  reasonable,  under  all  the  circum- 
stances; but,  by  consent  of  the  parties,  publication  of  the 
testimony  may  at '  any  time  pass  into  the  clerk's  office,  such 
consent  being  in  writing,  and  a  copy  thereof  entered  in  the 
order-books,  or  indorsed  upon  the  deposition  or  testimony. 

Rule  70. 

After  any  bill  filed  and  before  the  defendant  hath  answered 
the  same,  upon  affidavit  made  that  any  of  the  plaintiff's  wit- 
nesses are  aged  and  infirm,  or  going  out  of  the  country,  or 
that  any  one  of  them  is  a  single  witness  to  a  material  fact,  the 
clerk  of  the  court  shall,  as  of  course,  upon  the  application  of 
the  plaintiff,  issue  a  commission  to  such  commissioner  or  com- 


EQUITY     I'l.KAIHNC.  205 

missioiid'H  as  a  judge  of  tlie  court  may  direct,  to  take  the  ex- 
amination of  such  witness  or  witnesses  de  bene  esse,  upon  giving 
due  notice  to  the  adverse  inirty  of  the  time  and  j)hiee  of  taking 
his  testimony. 

RiUe  74. 

Whenever  any  reference  of  an}'  matter  is  made  to  a  master 
to  examine  and  report  thereon,  the  party  at  whose  instance  or 
for  wliose  benefit  the  reference  is  made  shall  cause  the  same 
to  be  presented  to  the  master  for  a  hearing  on  or  before  the 
next  rule-day  succeeding  the  time  when  the  reference  was 
made;  if  he  shall  omit  to  do  so,  the  adverse  party  shall  be  at 
liberty  forthwith  to  cause  proceedings  to  be  had  before  the 
master,  at  the  costs  of  the  party  ])rocuring  the  reference. 

Mide  75. 

Upon  ever}"  such  reference,  it  shall  be  the  duty  of  the  mas- 
ter, as  soon  as  he  reasonably  can  after  the  same  is  brought  be- 
fore him,  to  assign  a  time  and  }»lace  for  proceedings  in  the 
same,  and  to  give  due  notice  thereof  to  each  of  the  parties,  or 
their  solicitors ;  and  if  either  party  shall  fail  to  appear  at  the 
time  and  place  appointed,  the  master  shall  be  at  liberty  to 
proceed  ex  parte,  or,  in  his  discretion,  to  adjourn  the  examina- 
tion and  proceedings  to  a  future  day,  giving  notice  to  the  ab- 
sent party  or  his  solicitor  of  such  adjoui-nment ;  and  it  shall 
be  the  duty  of  the  master  to  proceed  with  all  reasonable  dili- 
gence in  every  such  reference,  and  with  the  least  i)racticable 
delay,  and  either  party  shall  be  at  libei'ty  to  apply  to  the  court, 
or  a  judge  thereof,  for  an  order  to  the  master  to  speed  the  |)ro- 
ceedings  and  to  make  his  re})ort,  and  to  certify  to  the  court  or 
judge  the  reason  for  any  delay. 

Itule  70. 

In  the  reports  made  by  the  master  to  the  court,  no  part  of 
any  state  of  facts,  charge,  afiidavit,  deposition,  examination, 
or  answer  Ijrought  in  or  used   before  them   shall   be  stated  or 


206  EQUITY    PLEADING. 

recited.  But  such  state  of  facts,  charge,  affidavit,  deposition, 
examination  or  answer  shall  be  identified,  specified,  and  re- 
ferred to,  so  as  to  inform  the  court  what  state  of  facts,  charge, 
affidavit,  deposition,  examination,  or  answer  were  so  brought 
in  or  used. 

Rule  77. 

The  master  shall  regulate  all  tlie  proceedings  in  every  hear- 
ing before  him,  upon  every  such  reference ;  and  he  shall  have 
full  authority  to  examine  the  parties  in  the  cause,  upon  oath, 
touching  all  matters  contained  in  the  reference ;  and  also  to 
require  the  production  of  all  books,  })a|)ers,  writings,  vouchers, 
and  other  documents  applicable  thereto;  and  also  to  examine 
on  oath,  viva  voce,  all  witnesses  produced  by  the  parties  before 
him,  and  to  order  the  examination  of  other  witnesses  to  be 
taken,  under  a  commission  to  be  issued  upon  his  certificate 
from  the  clerk's  office  or  by  deposition,  according  to  the  act  of 
Congress,  or  otherwise,  as  hereinafter  provided  ;  and  also  to 
direct  the  mode  in  which  the  matters  requiring  evidence  shall 
be  proved  before  him  ;  and  generally  to  do  all  other  acts,  and 
direct  all  other  inquiries  and  proceedings  in  the  matters  be- 
fore him,  which  he  may  deem  necessary  and  proper  to  the 
justice  and  merits  thereof  and  the  rights  of  the. parties. 

liule  78. 

Witnesses  who  live  within  the  district  may,  upon  due  no- 
tice to  the  opposite  party,  be  summoned  to  appear  before  the 
commissioner  appointed  to  take  testimony,  or  before  a  master 
or  examiner  appointed  in  any  cause,  by  subpoena  in  the  usual 
form,  which  may  be  issued  by  the  clerk  in  blank,  and  filled 
up  by  the  party  praying  the  same,  or  by  the  commissioner, 
master,  or  examiner,  requiring  the  attendance  of  the  wit- 
nesses at  the  time  and  place  specified,  who  shall  be  allowed  for 
attendance  the  same  compensation  as  for  attendance  in  court ; 
and  if  any  witness  shall  refuse  to  appear  or  give  evidence  it 
shall  be  deemed  a  contempt  of'  court,  which  being  certified  to 


I'XJUITY    PLKADINO.  207 

the  clerk's  oftice  by  tlu'  coiiiiiiissioiKT,  iiinster,  or  exaniinor,  an 
attaehment  may  issue  thereupon  by  order  of  the  court  or  of 
any  judge  thereof,  in  the  same  manner  as  if  the  contempt 
were  for  not  attending,  or  for  refusing  to  give  testimony  in  the 
court.  But  notliing  herein  contained  sliall  prevent  the  exam- 
ination of  witnesses  rivn  voce  when  })ro(hiced  in  open  court,  if 
the  court  shall,  in  its  discretion,  deem  it  advisable. 

liitle  7V. 

All  parties  accounting  before  a  master  shall  bring  in  I  heir 
respective  accounts  in  the  form  of  debtor  and  creditor  ;  and 
any  of  the  other  parties  who  shall  not  be  satisfied  with  the 
account  so  brought  in  shall  be  at  liberty  to  examine  the  ac- 
counting party  viva  voce,  or  upon  interrogatories,  in  the  mas- 
ter's office,  or  by  deposition,  as  the  master  shall  direct. 

Bale  SO. 

All  afhdavits,  depositions  and  documents  which  have  been 
previously  made,  read,  or  used  in  the  court  upon  any  proceed- 
ing in  any  cause  or  matter  ma}'  be  used  before  the  master. 

Rule  81. 

The  master  shall  be  at  libert}'^  to  examine  any  creditor  or 
other  person  coming  in  to  claim  before  him,  either  U})on 
written  interrogatories  or  viva  voce,  or  in  both  modes,  as  the 
nature  of  the  case  may  apj^ear  to  him  to  require.  The  evi- 
dence upon  such  examinations  shall  be  taken  down  by  tlie 
master,  or  by  some  other  person  by  his  order  and  in  his  pres- 
ence, if  either  i)arty  requires  it,  in  order  that  the  same  may 
be  used  by  the  court  if  necessary. 

liule  82. 

The  circuit  courts  may  api)oint  standing  masters  in  chancery 
in  their  respective  districts,  (a  majority  of  all  tlie  judges 
thereof,  including  the  justice  of  the  Supreme  Court,  the  circuit 
judges,  and  the  district  judge  for  the  district,  concurring  in  the 


208  EQUITY    PLEADING. 

appointment,)  and  they  may  also  appoint  a  master  pro  Jiac 
vire  in  any  particular  case.  The  compensation  to  be  allowed 
to  ever}^  master  in  chancery  for  his  services  in  any  particular 
case  shall  be  fixed  by  the  circuit  court,  in  its  discretion,  hav- 
ing regard  to  all  the  circumstances  thereof,  and  the  compen- 
sation shall  be  charged  upon  and  borne  by  such  of  the  parties 
in  the  cause  as  the  court  shall  direct.  The  master  shall  not 
retain  his  report  as  security  for  his  compensation  ;  but  when 
the  compensation  is  allowed  by  the  court,  he  shall  be  entitled 
to  an  attachment  for  the  amount  against  the  party  who  is 
ordered  to  pay  the  same,  if,  upon  notice  thereof,  he  does  not 
pay  it  within  the  time  prescribed  by  the  court. 

Riile  83. 

The  master,  as  soon  as  his  report  is  ready,  shall  return  the 
same  into  the  clerk's  office,  and  the  day  of  the  return  shall  be 
entered  by  the  clerk  in  the  order  book.  The  parties  shall 
have  one  month  from  the  time  of  filing  the  report  to  file  ex- 
ceptions thereto  ;  and,  if  no  exceptions  are  within  that  period 
filed  by  either  party,  the  report  shall  stand  confirmed  on  the 
next  rule-day  after  the  month  is  expired.  If  exceptions  are 
filed,  they  shall  stand  for  hearing  before  the  court,  if  the 
court  is  then  in  session  ;  or,  if  not,  then  at  the  next  sitting 
of  the  court  which  shall  be  held  thereafter,  by  adjournment 
or  otherwise. 

Bule  S4. 

And,  in  order  to  prevent  exceptions  to  reports  from  being 
filed  for  frivolous  causes,  or  for  mere  delay,  the  party  whose 
exceptions  are  overruled  shall,  for  every  exception  overruled, 
pay  costs  to  the  other  party,  and  for  every  exception  allow^ed 
shall  be  entitled  to  costs :  the  cost  to  be  fixed  in  each  case  by 
the  court,  by  a  standing  rule  of  the  circuit  court. 


ALUS    V.    STOWKI.L.  209 

ALUS  V.  HTcnVKLL. 

(Circuit  ('(.iirt  tVir  Wisconsin:   ')  Fetlcnil  Kcporler,  ■J()3-'20().      1SS((  ) 

Opinion  by  Dykk,  J.  .  ' 

Statement  of  Facts. — This  is  u  bill  to  restrain  the  in- 
fringement of  two  patents  for  saw-mill  dogs,  known  as  the 
Selden  and  Beckwith  j»atents.  On  a  previous  hearing  uj)on 
bill,  answer  and  proof's,  a  decree  was  entered  in  favor  of  ct>m- 
plainants,  sustaining  the  validity  of  both  patents.  Subse- 
quently the  defendant  moved  that  the  cause  be  opened  for  a 
rehearing  on  the  ground  of  newly-discovered  evidence.  The 
court  granted  a  rehearing  as  to  the  Selden  patent,  but  denied 
it  as  to  the  Beckwith  patent,  and  it  was  ordered  that  the  de- 
fendant have  leave  to  amend  his  answer  as  prayed  in  said 
petition  for  a  rehearing.  By  this  order  it  was  intended  and 
understood  tliat  the  controversy  between  the  parties  should  be 
reopened,  but  only  to  let  in  the  newly-discovered  matter,  and 
to  the  extent  only  that  the  Selden  patent  might  be  thereby 
affected.  The  defendant  filed  an  amended  answer,  which  set 
up  the  new  matter  relied  on  to  defeat  the  Selden  patent,  and 
also  embraced  all  the  original  defenses  to  both  patents.  The 
complainant  then  filed  a  motion  to  strike  the  answer  from  the 
files  for  the  rea.son  that  it  v/as  not  limited  in  form  and  sub- 
stance to  the  new  matter,  and  therefore  was  not,  as  it  is 
claimed,  such  an  answer  as  the  order  for  a  rehearing  author- 
ized. The  defendant  then  moved  to  dismiss  the  suit,  under 
the  sixty-sixth  rule  in  equity,  for  the  reason  that  no  replication 
had  been  filed  to  the  amended  answer,  and  this  is  the  motion 
now  to  be  decided. 

It  is  claimed  b}'^  counsel  for  defendant  that  if  the  complain- 
ant desired  to  raise  an}^  question  as  to  the  regularity  or  sufiic- 
iency  of  the  amended  answer,  he  should  have  excepted  to  it ; 
that  a  motion  to  strike  from  the  files  is  irregular  and  cannot 
be  entertained  ;  and  that  as  the  answer  was  not  excejited  to, 
and  a  replication  was  not  filed,  he  is  entitled  to  have  the  suit 
dismissed,  under  the  rule. 

It  is  not  intended  now  to  pass  upon  the  merits  of  the  motion 
to  strike  the  amended  answer  from  the  files.  The  only  (pies- 
tion  to  be  presently  determined  is.  Is  the  defendant  entitled, 
in  the  face  of  that  motion,  to  have  the  suit  dismissed  for  want 
of  a  replication?  In  other  words,  is  the  complainant  in  such 
default  as  to  entitle  the  defendant  to  such  action  by  the  court 
as  he  invokes? 
14 


210  EQUITY    PLEADING. 

It  must  be  presumed  that  the  motion  to  strike  the  amended 
•answer  from  the  files  was  made  in  good  faith,  and  an  inspec- 
tion of  the  answer  shows  that  it  contains  all  the  defenses  wliich 
appeared  in  the  original  answer,  in  addition  to  those  embraced 
in  the  new  matter,  on  account  of  which  a  rehearing  was 
granted.  Whether  this  form  of  ])leading,  in  the  present  atti- 
tude of  the  case,  be  regular  or  not,  I  do  not,  as  before  remarked, 
now  decide.  But  it  seems  very  clear  that  the  court  cannot 
treat  the  motion  to  strike  the  amended  motion  frotn  the  files 
as  such  an  act  of  non-conformity  to  correct  practice  as  leaves 
the  complainant  in  default,  and  as  entitles  the  defendant  to  a 
dismissal  of  the  suit  for  want  of  a  re[)lieation.  Rule  66  pro- 
vides that  "  whenever  the  answer  of  the  defendant  shall  not 
be  excepted  to,  or  shall  he  adjudged  or  deemed  sufficient,  the 
plaintiff  shall  file  the  general  rephcation  thereto  on  or  before 
the  next  succeeding  rule  day  thereafter.  ...  If  the  plaintiff 
shall  omit  or  refuse  to  file  such  replication  within  the  pre- 
scribed period,  the  defendant  shall  be  entitled  to  an  order,  as 
of  course  for  a  dismissal  of  the  suit." 

So  it  appears  that  if  the  answer  shall  be  excepted  to,  or  shall 
be  adjudged  or  deemed  insufficient,  a  replication  is  not  to  be 
filed.  And  I  do  not  think  that  the  only  method  that  may  be 
pursued  to  test  the  sufficiency  or  regularity  of  an  answer  is 
that  of  filing  exceptions.  Where  a  question  is  presented  like 
that  here  involved,  I  am  of  the  opinion  that  it  may  be  raised 
by  motion  to  strike  the  answer  from  the  files,  and  the  rule 
does  not  necessarily  exclude  such  a  course  of  procedure. 

Whether  or  not  in  a  given  case  exceptions  should  be  filed, 
or  a  motion  should  be  made  to  strike  the  pleading  from  the 
files,  may  depend  upon  the  character  of  the  objections  which 
are  made  to  the  pleading.  Authority  upon  the  correct  course 
of  practice  is  meager,  but  in  Strange  v.  Collins,  2  Yes.  &  B., 
162,  it  was  held  by  Lord  Eldon  that  wliere  a  supplemental 
answer  contained  not  onl}'  the  new  matter  which  the  part}' 
had  obtained  leave  to  allege,  but  also  other  matter  which  was 
contained  in  a  former  answer,  the  supj^lemental  answer  could 
be  ordered  off  the  file,  on  motion.  In  the  case  at  bar,  the 
pleading  involved  is  an  amended  and  not  a  supplemental 
answer,  but  that  ought  not  to  make  any  difference  in  the 
api)lication  of  a  rule  of  practice. 

It  is  understood  to  be  true,  as  claimed  by  counsel  for  defend- 
ant, that  exception^  to  this  answer  could  not,  in  the  present 


BOUDEREAU    V.    MONTGOMKKY.  li  1  1 

aspect  of  the  cnse,  be  tiled  without  K'ave.  Barnes  r.  Tweddle, 
10  Sim.,  481.  But  1  hardly  think  that  leave  of  the  eouit  was 
a  necessary  prere([uisite  to  a  motion/  to  strike  the  ])k'a<linf^ 
from  the  tiles.  On  the  whole,  I  am  of  the  oj)inion  that 
whether  that  motion  can  be  ultimately  sustained  on  its  mei-its 
or  not,  the  complainant  cannot  be  re<iarded  as  in  such  default 
for  want  of  a  replication  as  to  entitle  the  defendant  to  a  dis- 
missal of  the  suit. 

The  motion  to  dismiss  will  be  denied  ;  and,  as  it  seems  de- 
sirable that  proper  issue  in  the  cause  shall  be  joined  without 
unnecessary  <lelay,  the  motion  to  strike  the  answer  from  the 
files  may  be  brought  to  a  hearing-  on  ten  days'  notice  by  either 
party. 

BOUDEREAU  v.  MONTGOMERY. 

(Circuit  Court  for  Pennsylvania:  4  Washington,  186-190.     1821. ) 

Statement  of  Facts. — This  was  a  bill  by  a  large  number 
of  persons  who  claim  to  be  the  heirs  at  law  of  Charles  White, 
of  Philadelphia,  against  his  administrators.  There  were  com- 
missions issued  to  take  depesitions  in  Louisiana,  and  objections 
were  taken  to  the  evidence. 

Oi)inion  by  Washington,  J. 

As  to  the  last  objections,  that  would  be  attended  to  by  the 
court  upon  the  report  of  the  master,  to  whom  it  might  be 
proper  to  refer  the  depositions,  to  inquire  wdiother  any  and 
which  of  the  interrogatories  are  leading. 

The  objections  to  the  exe(.'ution  of  the  commission  strike  at 
the  entii'e  depositions,  and  being  in  iri}'  opinion  well  ibunded, 
the  depositions  themselves  must  be  suppressed. 

The  commissioners  act  under  a  special  authority,  which  it 
is  not  only  their  duty  to  puisue,  but  it  should  Ije  made  to 
appear  to  the  court,  by  their  own  showing,  that  this  authority 
w'as  pursued.  Whatever  facts  in  relation  thereto  are  stated  in 
their  report,  the  court  is  bound  prima  facie  to  give  credit  to; 
but  the  court  cannot  ])rcsunie  that  they  have  duly  executed 
their  authority,  when  they  ai'e  themselves  silent  U|)on  that  sub- 
ject. It  should  particularly  a|>])car  when  and  where  the  de|>o- 
sitions  were  taken.  As  to  the  de])Ositions  taken  at  Iberville  by 
P.,  not  only  out  of  his  district  but  within  the  district  of  an- 
other commissioner,  it  is  impossible  that  th(>y  can  be  supported, 
any  more  than  if  they  had  been  taken  by  a  person  not  author- 
ized by  the  court  to  take  them.     And   having  thus  fui'nished 


212  EQUITY    PLEADING. 

the  court  with  evidence  of  his  total  disregard  of  the  authority 
given  to  him  in  those  instances,  I  am  well  warranted  in  doubt- 
ing, at  least,  whether  he  has  been  more  attentive  to  it  in  others 
where  he  is  silent  as  to  the  place  at  which  the  commission  was 
executed. 

Depositions  were  offered  by  plaintiffs  taken  in  an  ejectment 
suit  in  Baltimore,  brought  by  some  of  their  number  against 
the  administrators.  They  were  objected  to  as  res  inter  alios 
acta. 

Ol)inion  by  Washington,  J. 

As  depositions,  the  evidence  is  inadmissible,  inasmuch  as  it 
was  taken  in  a  cause  between  different  parties  from  those  who 
are  now  before  this  court,  though  in  relation  to  the  same  ques- 
tion. Were  the  plaintiffs  tlie  same,  I  think  the  objection 
would  not  hold,  on  the  ground  that  Mr.  Cross  was  not  a  party 
to  the  suit  in  which  the  depositions  were  taken,  since  Mont- 
gomery was,  and  as  representing  his  co-administrator,  as  well 
as  the  estate  of  the  intestate,  he  had  every  opportunity  of 
cross-examining  the  witnesses. 

Note.- — Only  so  mucli  of  this  case  is  reported  as  relates  to  Equity  Pleading  and 
Practice.  ] 

GASS  V.  STINSON. 
(Circuit  Court  of  Massachusetts:  2  Sumner.  605-()12.     1H37.) 

Statement  of  Facts. — This  cause  was  before  the  master 
upon  an  interlocutory  order,  and  an  application  was  made  to 
examine  witnesses  impeaching  the  competency  of  Noah  James, 
a  witness  whose  testinjony  had  been  before  the  court  upon  the 
hearing.  There  was  an  order  made  by  the  judge  at  chamb- 
ers to  take  the  depositions  de  bene  esse,  and  the  cause  came  up 
on  a  motion  to  supersede  that  order. 

Opinion  by  Story,  J. 

As  the  original  application  to  the  master  was  made  orally, 
the  precise  grounds  on  wbicli  it  was  made  do  not  appear,  ex- 
cept from  the  master's  certificate.  This  was  a  great  irregular- 
ity ;  and  the  application  should  have  been  by  petition  in 
writing,  verified  (if  not  ordinarily,  at  least  in  a  case  of  this 
sort)  by  affidavit.  See  Troup  v.  Sherwood,  3  John.  Ch.,  558, 
56(3.  The  irregularity,  however,  was  not  then  brought  to  my 
notice.  The  interrogatories  proposed  to  be  |)ut  to  the  witnesses 
were,  however,  filed  in  writing  before  the  master  ;  and  an  ex- 
ception has  now  been  taken  to  their  purport  and  character.  I 
shall  presently  have  occasion  to  comment  on  them. 


GASS    V.    STINSON.  'i  1  .'J 

'riu'  apjilication  to  supersede  the  (»r(k'i'  rclifH  iijxni  varidiis 
grounds.  The  first  one  is  that  the  application  was  loundetl 
upon  a  suggestion  Avhieh  is  wliollv/  incorreet,  to  wit,  that 
James  had  not  received  a  plenary  jjardon  ;  wliei'eas  in  fact  he 
had  received  such  a  ])ardon,  as  appears  by  a  coj»y  of  the  in- 
strument of  pardon,  'i'his  removes  at  once  the  whole  of  the 
original  ground  of  the  a})plication,  and  undoubtedly  entitles 
the  plaintifi"  to  have  the  order  for  taking  the  de])Ositions  su[)er- 
seded,  since  the  witness  was  clearl}-  competent. 

But  an  attempt  has  been  made  to  sustain  the  order  upon 
the  ground  that  the  facts  to  be  stated  by  the  witnesses  would 
go  to  atFect  the  credibility  of  James.  Upoji  looking  into  the 
interrogatories  filed,  it  is  impossible  that  they  can  be  sustained 
for  this  or  any  other  purpose  applicable  to  the  cause.  The 
first  three  interrogatories  are  merely  introductory,  and  point 
solely  to  the  identification  of  James  ;  and,  in  other  resi)ects, 
are  immaterial  and  irrelevant.  All  the  other  interrogatories 
seek  to  establish,  by  the  parol  evidence  of  witnesses,  that  there 
was  an  indictment,  trial,  conviction  and  sentence  of  James  for 
larceny;  facts  which  should  be  proved  by  a.  production  of  the 
record  itself,  and  which  are  not,  in  their  character,  proper  to 
be  established  by  tlie  mere  oral  statements  of  witnesses.  There 
is  no  ground  upon  which  a  party  can  be  ])ermitted  to  testify 
orally  to  the  contents  or  purport  of  an  indictment,  or  verdict, 
or  judgment ;  for  the  best  evidence  is  the  original  })aper,  or  a 
certified  copy.  So  that,  if  the  interrogatories  had  been  origin- 
ally examined,  they  must  have  been  su})pressed,  whether  they 
applied  to  competency  or  to  credibility. 

But  it  is  proper  to  say  a  few  words  as  to  the  time  and  man- 
ner of  presenting  objections  to  the  competency  or  credibility  of 
witnesses  in  courts  of  equity.  The  general  course  of  ]>ractice 
is  that,  after  publication  has  passed  of  the  dej)ositions  (though 
it  may  be  befoi-e),  if  either  party  would  ol)ject  to  the  comjie- 
tency  or  crcdi])ilily  of  the  witnesses  whose  depositions  are  in- 
troduced on  the  other  side,  he  must  make  a  special  apj)lieation 
by  ])etition  to  the  court  lor  lilxM'ty  to  exhibit  articles,  staling 
the  facts  and  objections  to  the  witnesses,  and  ]iriiying  leave  to 
examine  other  witnes.^^es  to  establish  the  truth  ol'  the  allegations 
in  the  articles  bv  suitable  proofs.  1  Harris,  ("h.  J'r.  (bv  New- 
land),  pp.  282,  283;  Ilinde's  P.Ch.,  074,37.');  ]  Newl.  Ch. 
Pr.,  289,  200;  Cilb.  For.  iJoman.,  1-17,1-^8.  Without  such 
special   order,  no  such   examination  can  take  place;  and   this 


214  EQUITY    PLEADING. 

has  been  the  settled  rule  ever  since  Lord  Bacon  j^romul^atecl 
it  in  his  Ordinances.  Ord.  72  ;  Beanies'  Ordin.  in  Ch.,  })p.  32, 
187;  Mill  V.  Mill,  12  Yes.,  400.  Upon  such  a  petition  to  file 
articles,  leave  is  ordinarily  granted  by  the  court,  as  of  cjourse, 
unless  there  are  special  circumstances  to  prevent  it.  There  is 
a  difference,  however,  between  objections  taken  to  the  compe- 
tency and  those  taken  to  the  credibility  of  witnesses,  ^\'llere 
the  objection  is  to  competency,  the  court  will  not  grant  the 
application  after  publication  of  the  testimony,  if  the  incompe- 
tency of  the  witness  was  known  before  the  conimission  to  take 
his  deposition  was  issued  ;  for  an  interrogatory  might  then 
have  been  put  to  him  directly  on  the  jioint.  But,  if  the  ob- 
jection was  not  then  known,  the  court  will  grant  the  applica- 
tion. 1  Harris.  Ch.  Pr.  (bv  Newland),  282,  283  ;  1  Newl.  Ch. 
Pr.,  289.  290,  291  ;  Hinde's  Ch.  Pr.,  374,  375;  Purcell  v.  Mc- 
Naraara,  8  Ves.,  324  ;  Vaughan  v.  Worrall,  2  Madd.  Ch.  Pr., 
322  ;  S.  C,  2  Swanst.,  400.  This  was  the  doctrine  asserted  by 
Lord  Hardwicke  in  Callaghan  v.  Rochfort,  3  Atk.,  (543,  and  it 
has  Ijeen  constantlv  adhered  to  ever  since.  See  Purcell  v. 
McNamara,  8  Ves.^  324;  Vaughan  v.  Worrall,  2  Madd.  Ch. 
Pr.,  322.  The  proper  mode,  indeed,  of  making  the  application 
in  such  case  seems  to  have  been  thought  by  the  same  great 
judge  to  be,  not  by  exhibiting  articles,  but  by  motion  for  leave 
to  examine  the  matter,  upon  the  foundation  of  ignorance  at  the 
time  of  the  examination.  Id.  But  U})on  principle  there  does 
not  seem  to  be  any  objection  to  either  course;  though  the 
exhibition  of  articles  would  seem  to  be  more  formal,  and  per- 
haps, after  all,  more  convenient  and  certain  in  its  results. 

But  where  the  objection  is  to  credibility,  articles  will  ordi- 
narily be  allowed  to  be  filed  by  the  court  upon  petition,  with- 
out affidavit,  after  publication.  Watmore  v.  Dickinson,  2  Ves. 
&  Beam.,  267.  The  reason  for  the  difference  is  said  by  Lord 
Hardwicke  (in  Callaghan  v.  Rochfort,  3  Atk.,  643)  to  be,  be- 
cause tlie  matters  examined  into  in  such  cases  are  not  matei'ial 
to  the  merits  of  the  cause,  but  only  relative  to  the  character  of 
the  witnesses.  And,  indeed,  until  after  publication  has  passed, 
it  cannot  be  known  what  matters  the  witnesses  have  testified 
to  ;  and,  therefore,  whether  there  was  any  necessity  of  examin- 
ing any  witnesses  to  their  credit.  Russel  v.  Atkinson,  2  Dick., 
532.  This  latter  is  the  stronger  ground  ;  and  it  is  confirmed 
by  what  fell  from  the  court  in  Purcell  v.  McNamara,  8  Ves., 
324. 


GASS    V.    STINSON.  2lo 

When  the  examination  is  allowed  (o  eredibility  only,  the 
interrogatories  are  confined  to  general  interrogatories  as  to 
credit,  or  to  such  particular  focts  only  as  are  not  material  to 
what  is  already  in  issue  in  the  cause.  The  qualification  in 
the  latter  case  (which  case  seems  allowed  only  to  inij)U<i,n  the 
witness'  statements  as  to  collateral  facts)  is  to  prevent  the  party, 
under  color  of  an  examination  as  to  credit,  Irom  })rocuring 
testimony  to  overcome  the  testimony  already  taken  in  the 
cause,  and  published  in  violation  of  the  fundamental  princij)le 
of  the  court,  which  does  not  allow  any  new  evidence  of  the 
facts  in  issue  after  publication.  The  rule  and  the  reasons  of  it 
are  fully  expounded  in  Purcell  v.  McNamara,  8  Ves.,  324,  32G  ; 
Wood  V.  Hammerton,  9  A-'es.,  145;  Carlos  v.  Brock,  10  Ves., 
49,  50,  and  White  v.  Fussel,  1  Ves.  &  Beam.,  151.  (The  very 
form  of  the  order  is  given  in  a  note  (g)  to  Watmore  i\  Dickin- 
son, 2  Ves.  &  Beam.,  2(38.  See,  also,  1  Madd.  Ch.  Pr.,  320  to 
325  ;  Piggott  v.  Croxhall,  1  Sim.  &  Stu.,  467.)  It  was  recog- 
nized and  enforced  by  Mr.  Chancellor  Kent,  in  Trou[)  v.  Sher- 
wood, 3  John.  Ch.  R.,  558,  562  to  oG~y.  When  the  examina- 
tion is  to  general  credit,  the  course  in  England  is,  to  ask  the 
question  of  the  witnesses,  whether  they  would  believe  the  party 
sought  to  be  discredited  upon  his  oath.  See  Purcell  v.  Mc- 
Namara, 8  Ves.,  324  ;  Carlos  v.  Brock,  10  Ves.,  49,  50  ;  Anon., 
3  Ves.  &  Beam.,  93  ;  Watmore  v.  Dickinson,  2  Ves.  &  Beam., 
267.  But  see  Gill  v.  Watson,  3  Atk.,  522.  With  us  the  more 
usual  course  is  to  discredit  the  party  by  an  inquiry,  what  liis 
general  reputation  for  truth  is  ;  whether  it  is  good  or  whether 
it  is  bad. 

But  examinations  to  the  credit  of  witnesses  are  required  to 
be  made  before  the  hearing ;  and  it  is  quite  too  late  to  make 
the  application  after  the  hearing,  and  a  fortiori  after  an  inter- 
locutory decree  has  passed  upon  the  hearing,  upon  the  footing 
of  the  evidence  in  the  cause.  So  the  doctrine  was  laid  down 
b}'  Lord  Eldon  in  W^hite  v.  Fussell,  1  Ves.  &  Beam.,  151.  The 
case  of  Piggott  v.  Croxhall,  1  Sim.  &  Stu.,  467,  manifestly 
implies  the  same  doctrine  ;  though  the  api)lication  was  there 
made  before  the  hearing.  It  seems  to  me,  therefore,  that  upon 
this  ground  alone,  the  defendant  is  not  now  at  liberty  to  ex- 
amine witnesses  before  the  master,  to  the  credit  of  a  i)erson, 
whose  testimony  was  read  at  the  hearing  without  objection, 
the  ol)jection  to  his  competency  or  credibility  being  then  fully 
known.     The  defendant,  by  his  conduct  upon  that  occasion, 


216  KQUITY    PLEADING. 

waived  the  objection,  uiid  he  caiiiiot  in  any  subsequent  stage 
of  the  cause  renew  it. 

But  it  is  said  that,  upon  a  rehearing,  or  an  appeal  from  the 
decree  at  the  rolls  to  the  chancellor,  new  evidence  is  admissible 
to  be  read  which  was  not  read  at  the  original  hearing.  That 
may  be  true  under  particular  circumstances,  as  where  it  is 
evidence  originally  in  the  cause,  but  not  read  ;  or  where  it  is 
evidence  newly  discovered  since  the  hearing.  On  this  subject, 
however,  I  do  not  dwell,  because  it  was  recently  considered  in 
this  coui't  in  a  case  whicii  underwent  a  good  deal  of  considera- 
tion. 1  allude  to  the  case  of  Wood  r.  Mann,  2  Sumn.,  316. 
The  case  of  Needham  v.  Smith,  1  A'ern.,  40o,  has  also  been 
relied  on  to  show  that  a  confession  of  a  witness,  which  has 
come  to  the  knowledge  of  the  other  party  since  the  hearing, 
and  which  goes  to  his  competency  or  credibility,  is  admissible 
on  an  appeal  from  the  rolls.  On  that  occasion  it  was  also  said, 
that  if,  after  the  hearing,  a  witness  is  convicted  of  perjury,  the 
objection  may  be  taken  advantage  of  upon  a  rehearing.  But, 
giving  the  fullest  effect  to  this  doctrine,  it  only  ap])lies  to  a 
case  strictly  of  a  reliearing  (for  an  aj^peal  from  the  rolls  is  only 
a  rehearing.  East  India  Compau}-  v.  Boddam,  13  Ves.,  421  ; 
Buckmaster  v.  Harrop,  13  Ves.,  45(5),  where  the  whole  cause  is 
opened  anew  ;  and  where  the  evidence  is  already  in  the  cause, 
or  has  been  brought  out  since  the  former  hearing.  The  pres- 
ent is  not  such  a  case. 

It  has  been  suggested  b\'  the  counsel  for  the  })laintiff,  that 
if  a  defendant  cross-examines  a  witness,  knowing  his  interest, 
it  is  a  waiver  of  the  objection.  The  case  of  The  Corporation 
of  Sutton  C'olfield  v.  M'ilson,  1  Vern.,  254,  certainly  supports 
this  proposition.  It  has  been  thought  to  go  farther,  and  to 
decide  that  a  mere  cross-examination  upon  the  mei'its  is  a 
waiver  of  any  objection  to  his  competency.  But  this  has,  as  a 
matter  of  general  practice  and  doctrine,  been  overturned  by 
the  more  recent  decision  in  Moorhouse  v.  De  Passou,  19  Yes., 
433  ;  S.  C,  Coop.,  300  ;  in  which  it  wjis  held  that  in  equity 
the  cross-examination  of  a  witness,  in  utter  ignoi'ance  of  his 
having  given  an  answer  to  an  interrogatory,  showing  that  he 
has  an  interest  in  the  cause,  cannot  amount  to  a  waiver  of  the 
objection  to  his  competency.  In  our  practice  at  least,  where 
the  objection  is  actually  known,  and  may  be  taken  at  the 
time  of  the  cros.s-exami nation,  it  might  deserve  consideration 
whether  the  case  in  Vernon  ought  not  to  be  adhered  to.     But 


*  E!SI.A\A     \'.     MAZAN(;K.  "JIT 

I  do  not,  ;is  it  is  umu'ccssarv.  i:ivc  any  opinion  on  lliis  point. 
But  b^ee  on  this  poini  Ihiirison  /•.  ( 'ouriwcM.  1  iJuss.  i^:  ^lylne, 
428,  ami  Tigott  /•.  Croxall,  id.,  12S.  n/otc 

It  is  suggested,  in  tlie  argument  ol'  llic  dd'cndMnts'  eonnsid, 
that  James  is  to  be  examined  anew  hclbi-o  the  master,  without 
any  sj)eeial  order  of  the  court.  W  this  is  so,  certainly  it  is  an 
irregularity,  and  his  examination  upon  a  proper  motion  may 
be  su})pressed.  The  case  of  Rowley  v.  Adams,  1  Mylnc  & 
Keen,  543,  is  directly  in  point.  lUit  if  his  former  dejmsition, 
only,  is  to  bo  read  in  the  hearing  before  the  mastei",  that  is  all 
proper,  for  the  evidence  already  in  the  cause  is  for  the  consid- 
eration of  the  ma.ster. 

Upon  the  whole,  m}^  opinion,  in  every  view  of  the  matter, 
is,  that  the  order  ought  to  be  superseded  ;  and  it  is  accordingly 
superseded. 

ESLAVA  V.  MAZANGE. 

(Circuit  Court  for  Alabama:  1  Woods,  623-627.     1871.) 

Opinion  by  Bradley,  J. 

Statement  of  Facts. — The  bill  is  filed  in  this  case  to  sub- 
ject certain  propert}',  conveyed  by  the  complainant  to  Ovid 
Mazange  many  years  since,  to  a  j)arol  trust,  in  favor  of  the 
complainant,  on  which,  as  he  alleges,  the  conveyance  was 
made.  The  Bank  of  Mobile  is  made  a  defendant  becau.se  it 
has  an  execution  against  Eslava  which  has  been  levied  on  the 
property  in  question,  (^n  filing  the  bill  and  before  issuing  the 
subpoena,  the  complainant  obtained  an  order  to  examine  him- 
self and  his  wife  as  to  any  transactions  with  or  statements  by 
Ovid  ISIazange,  deceased,  upon  interi-ogatori(!S  to  be  served  on 
the  parties  to  the  suit,  or  upon  notice  to  them,  before  some 
commissioner  of  the  United  States.  The  rule  suggests  that 
Eslava  and  his  wife  are  aged  and  infirm,  and  reside  in  New 
Orleans. 

As  .soon  as  issue  was  joined  in  the  cause,  the  defendants 
gave  notice  to  the  comj)lainant  that  they  desired  the  testimony 
in  the  ca.se  should  be  taken  orally,  under  the  sixty-seventh  ruK' 
of  the  court,  and  soon  after  filed  written  objections  to  taking 
the  testimony  of  the  ])laintiff  and  his  wife  on  the  grounds, 
amongst  others,  that  the  complainant  was  not  a  compt'tent 
witness  in  lh(>  case  (Mazange  being  dead),  and  that  the  wife 
could  not  be  a  witness  for  her  husband.  The  complainant's 
counsel,   neverthele.ss,   after  this,  j)i'oceeded   to  file  and  sei've 


218  EQUITY    PLEADING. 

inteiTogatories  witli  u  view  to  examine  tlie  complainant  and 
his  wife  on  commission.  The  defendants  tiled  cross-interroga- 
tories under  pi'otest.  The  examination  having  been  taken 
and  the  de[)ositions  returned,  the  defendants  at  the  hist  term 
moved  to  suppress  the  same.  The  motion,  not  being  disposed 
of,  is  now  repeated.  One  ground  of  the  motion  is,  that  the- 
compkiinant  and  his  wife  are  not  competent  witnesses  in  the- 
case. 

In  general,  the  comjietency  of  witnesses  in  the  United  States- 
courts  in  civil  cases  is  governed  l)y  the  law  of  the  state  in 
which  tlie  court  is  held.  Such  was  the  rule  enacted  by  the 
statute  of  July  G,  ]8(i2  (12  Stat.,  588).  Jhit  congress  has 
specially  regulated  the  sul)ject  now  before  the  court.  By  the 
act  of  July  2,  18G4  (13  Stat.,  351),  it  was  declared,  amongst 
other  things,  that  there  should  be  no  exclusion  of  any  witnesS' 
in  the  federal  courts  because  he  was  a  party  to,  or  interested 
in,  the  issue  tried.  This  act  was  modified  by  that  of  March  3, 
1865  (13  Stat.,  533),  by  which  it  was  enacted  that  in  actions 
by  or  against  executors,  administrators  or  guardians,  neither 
party  should  be  alhnved  to  testify  against  the  other  as  to  any 
transaction  with,  or  statement  by,  the  testator,  intestate  or 
ward,  unless  called  to  testify  thereto  by  the  op{)osite  i)art3',  or 
required  to  testify  thereto  by  the  court.  This  act  is  a  recogni- 
tion of  the  glaring  injustice  it  would  involve,  to  permit  one 
party  to  propound  himself  as  a  witness  in  his  own  behalf  as 
to  a  transaction  between  him  and  a  deceased  jjcrson,  who  can 
no  longer  give  his  version  of  the  affair.  If  the  law  were  to- 
allow  a  man  to  wait  until  his  antagonist  were  dead,  and  then 
to  sue  his  heirs,  and  ])ut  himself  upon  the  witness-stand  and 
give  his  version  of  the  affair,  with  no  one  to  contradict  or 
qualify  his  testimony,  it  would  be  as  gross  a  prostitution  of 
the  forms  of  law,  as  to  allow  a  man  to  be  judge  in  his  own 
cause. 

Every  honest  mind  revolts  against  it.  There  may  be  special 
cases,  it  is  true,  in  which  the  court  can  see  that  no  injustice 
would  be  done  by  calling  on  a  party  to  testify,  even  though 
his  adversary  be  deceased.  But  it  is  useless  to  attempt  to  an- 
ticipate such  cases.  When  they  arise  it  will  be  for  the  court, 
and  not  the  party  himself,  to  suggest  that  he  be  called.  Or, 
if  he  make  the  suggestion,  the  other  i)arty  ought  at  least  to  be 
heard  u])on  it. 

It  is  claimed  in  this  case  that  the  court  has  made  an  order 


ESLAVA    V.    MAZAXGE.  210 

to  take  tlio  testimony.  lUit  liow  was  it  iiuule?  It  was  an  ex 
parte  order  taken  before  the  defendants  were  subpoenaed  to 
appear  in  the  cause,  \yiien  the  statute  authorizes  sudi  testi- 
mony to  be  taken  if  "  lecjuired  by  the  court,"  it  does  not 
refer  to  such  a  requirement  or  order  as  that  which  was  ma<le 
in  this  case.  If  an  ex  parte  order  can  be  got  in  tliis  way,  the 
statute  would  be  practically  abrogated.  The  reservation  of 
power  in  the  court  to  require  the  evidence  to  be  taken  was 
made  in  order  to  provide  for  such  extreme  and  special  cases  as 
might  arise,  in  which  it  would  be  a  great  hardship  not  to  take 
it.  The  court  will  exercise  this  power  with  great  care  and 
caution. 

This  case  is  one  in  which  it  would  be  eminently  improper 
to  allow  the  evidence.  The  complainant  seeks  to  set  up  a 
parol  trust  in  proi)erty  conveyed  away  by  him  over  twenty 
years  ago,  and  possessed  by  the  grantee  and  his  assigns  ever 
since.  Jt  would  be  most  dangerous  to  allow  a  party  to  prove 
his  own  case  under  such  circumstances,  after  his  grantee  was 
dead.  Whether  it  is  provable  at  all  is  another  question,  not 
now  before  the  court.  But  no  man's  property  would  be  safe 
under  such  a  rule  of  evidence.  Of  course,  the  wife  is  incompe- 
tent to  testify  for  or  against  her  husband. 

The  fact  that  the  Bank  of  Mobile  has  filed  a  cross-bill  in  the 
case,  can  make  no  difference.  The  order  to  examine  the 
parties  is  taken  on  behalf  of  the  complainant,  not  on  behalf  of 
the  bank,  and,  if  it  were  taken  on  behalf  of  the  bank,  it  would 
not  help  the  ca.se.  The  bank  is  not  the  "  ojjposite  party  " 
referred  to  in  the  act  who  is  authorized  to  call  the  ])laintiff  as 
a  witness.  The  "  opposite  "  party  meant  is  that  party  against 
whom  the  evidence  is  sought  to  be  used.  The  interests  of  the 
complainant  and  of  the  bank  in  the  matter  are  the  same. 
The  testimony  is  clearly  incompetent  and  must  be  disallowed, 
and  the  depositions  suppressed. 

It  is  urged  that  the  witnesses  were  old  and  infirm,  and, 
therefore,  that  the  order  to  take  their  testimony  was  strictly 
regular  under  the  seventieth  rule  -in  equity.  That  rule  was 
not  originally  intended  for  the  examination  of  a  party  ;  and  it 
may  be  questioned  whether,  under  any  circumstances,  it 
ought  to  be  extended  to  the  case  of  a  party  propounding  him- 
self as  a  witness.  But  it  certainly  cannot  legalize  testimony 
taken  as  the  plaintiff's  has  been  taken  in  this  case. 

It  may  also  be  urged  that  the  order  for  taking  the  testimony 


220  EQUITY    PLKA1)1X(;. 

must  stand  until  it  is  regularly  discharged.  It  is  undoubtedly 
the  general  rule  that,  after  the  close  of  the  term  in  which  an 
order  is  made,  it  stands  until  it  is  regularly  discharged.  But 
orders  obtained  upon  motion  may  be  discharged  upon  motion  ; 
and  a  fortiori,  orders  obtained  ex  parte  may  be  thus  discharged 
which  have  never  been  assented  to,  but  always  resisted  by  the 
other  part}'  ;  and  a  motion  to  suppress  depositions  fairly 
brings  up  the  regularity  of  an  ex  -parte  order  directing  them  to 
be  taken,  as  well  as  the  competency  of  the  witnesses  examined, 
if  the  party  moving  to  suppress  has  never  done  anything  to 
waive  the  objection.  From  an  examination  of  the  minutes 
and  files  in  this  case,  I  am  satisfied  that  the  defendants  have 
taken  every  opportunity  fairly  in  their  power  to  express  their 
opposition  to  the  testimony  of  these  parties,  as  well  as  to  the 
taking  of  it  by  deposition. 

The  motion  to  suppress  the  depositions  will  be  granted ;  but, 
as  they  were  taken  under  an  order  of  the  court,  though  an 
irregular  order,  the  cause  will  be  continued  until  the  next 
term,  and  the  time  for  taking  testimony  enlarged  until  the 
rule  day  in  September,  to  enable  the  complainant  to  take 
other  testimony  in  the  cause,  with  like  liberty  to  the  defend- 
ants. 

KELSEY  V.  HOBBY. 

(16  Peters,  269-280.     1842.) 

Opinion  by  Taney,  C.  J. 

Statement  of  Facts. — This  is  an  ajjpeal  from  the  decree 
of  the  circuit  court  for  the  district  of  South  Carolina.  It  ap- 
pears from  the  record  that  Kelsey,  MTntyre  and  Hobby,  for 
some  time  previous  to  the  9th  of  February,  1822,  carried  on 
business  in  Georgia,  as  merchants,  under  the  firm  of  C.  Kelsey 
&  Company  ;  and  it  having  been  agreed  among  the  partners 
that  Hobby  should  withdraw  from  the  firm,  they,  on  the  day 
above  mentioned,  entered  into  the  following  agreement : 

"  Articles  of  agreement  entered  into  at  the  dissolution  of 
the  firm  of  C.  Kelsey  and  Comi)any,  between  Alfred  M. 
Hobby,  of  the  first  part,  and  Charles  Kelsey  and  Charles 
INFIntyre,  of  the  second  part,  witnesseth  :  That  the  said  Alfred 
M.  tlobby  doth  agree  to  withdraw  tVom  the  said  firm  upon  the 
following  conditions,  viz.:  that  tlie  said  ])arties  of  the  second 
part  are  to  take  upon  themselves  the  entire  settlement  of  the 
business  of  the  said  firm,  and  are  to  pay  to  the  said  A.  M. 


KKI.isKV    V.     IIOIU'.V.  2'1\ 

Hobby.  i\\\vv  the  dcbt.s  ol"  {\\v  snid  linn  ;iic  all  |>aiil  and  dis- 
obaroed,  and  a  sullieiciit  sum  colU'c-ted  out  ol"  Ibc  dt'l)t8  now- 
due  to  the  said  liini,  $o,oO(),  and  in  Bridge  bills  whenever  he 
shall  demand  them,  $1,130.  And  the  said  A.  M.  Hobby,  for 
said  consideration  of  the  above  sums  of  money  to  be  j)aid,  and 
the  furthei-  sum  of  .$i  to  him  in  hand  paid,  the  receipt  whereof 
is  hereby  acknowledged,  hath  relinquished,  and  by  these  pres- 
ents doth  transfer,  to  the  said  parties  of  the  second  part,  all  his 
interest  or  claims  of  whatever  nature  he  has,  or  may  have,  as 
partner  in  the  said  firm.  It  is  also  stipulated  and  agreed,  that 
the  said  A.  M.  Hobby  of  the  lir.st  part,  in  consideration  as 
above  specified,  is  to  protect  the  said  parties  of  the  second 
part  from  a  certain  judgment  obtained  against  said  firm  by  the 
branch  of  the  United  States  Bank,  in  this  city,  and  to  hold  them 
harmless  from  any  balance,  should  there  Ije  any  due,  after  the 
conclusion  of  the  settlement  between  John  M'Kinnie  and 
Thomas  Gardner,  respecting  the  said  judgment.  And  for  the 
faithful  discharge  of  this  agreement,  we  bind  ourselves,  our 
heirs,  executors,  administrators  or  assigns." 

At  the  time  this  agreement  was  executed,  an  inventory  was 
taken  of  the  a.ssets  and  debts  of  the  firm,  by  which  it  appeared 
that  the  goods  and  property  on  hand,  together  with  the  debts 
due  to  the  partnership,  were  estimated  at  $38,1 64. 9G  ;  and  that 
the  debts  due  from  it  amounted  to  $20, 057. 91,  und  that  this 
schedule  formed  the  basis  of  the  agreement.  In  November, 
1829,  Hobby  filed  his  bill  against  Kelsey  and  M'Intyre,  charg- 
ing that  there  was  a  surplus  of  partnership  effects,  after  pay- 
ing all  the  debts,  sufficient  to  satisfy  the  $5,500  mentioned  in 
the  contract,  as  well  as  the  Bridge  bills,  and  praying  an  ac- 
count. These  Bridge  bills  were  notes  issued  by  a  company 
who  had  built  a  bridge  in  the  state  of  Georgia  ;  and  these 
notes  circulated  as  mone}^  but  at  a  heavy  discount. 

On  the  7th  of  February,  1830,  M'Intyre  put  in  his  separate 
answer,  in  which  he  denies  that  the  assets  of  the  partnershij) 
produced  the  surplus  charged  by  the  ('om|)lainant ;  and  exhib- 
ited an  account  according  to  which  the  funds  of  the  partner- 
ship realized  only  $29,580.83,  the  debts  paid  amounted  to 
$28,874.06  ;  and  he  insisted  that  large  sums  were  also  paid  b}'- 
them  for  interest  on  the  debts  of  the  firm,  and  heavy  exjienses 
incurred,  which  were  not  introduced  into  this  account,  but  for 
which  Kelsey  and  M'Intyre  ought  to  be  allowed  credit ;  and 
that  when  these  sums  were  added,  they  would  amount  lo  con- 


222  EQUITY    PLEADING. 

siderably  more  than  had  been  collected,  and  that,  in  addition 
to  this,  they  are  entitled  to  an  allowance  of  two  and  a  half  per 
cent,  on  all  sums  collected  and  paid  by  them.  He  also 
averred  that  Hobby  did  not  perform  his  part  of  the  agreement, 
and  that  an  execution  was  afterwards  issued  by  the  branch  of 
the  United  States  Bank,  and  the  goods  of'Kelse}^  and  M'Intyre 
seized  for  the  debt  against  which  Hobbj^  had  covenanted  to 
save  them  harmless  ;  and  that,  by  reason  of  that  execution 
and  seizure,  they  were  put  to  great  expense,  and  were  seriously 
injured  in  their  credit  and  embarrassed  in  their  business  as 
merchants ;  and  insisted  that  they  were  absolved  from  their 
agreement  by  the  failure  of  Hobby  to  perform  his  part.  The 
answer  further  stated  that  although  Kelsey  and  M'Intyre  de- 
nied the  right  of  the  complainant  to  the  Bridge  bills  he 
claimed,  yet  they  were  willing  to  give  him  an  order  for  them 
on  the  attorney  in  whose  hands  they  had  been  placed  for  suit, 
and  who  had  jn-osecuted  the  claim  to  judgment.  That  the  re- 
spondent had  always  been  ready  to  account  with  the  complain- 
ant, Hobby,  and  to  deliver  him  these  bills,  but  that  no  demand 
was  made  until  this  suit  was  about  to  be  instituted. 

Kelsey,  the  other  respondent,  had  removed  to  New  York,  a 
short  time  before  the  bill  was  filed,  and  his  answer  was  not  put 
in  until  January  10,  1838.  This  answer  is  in  substance  the 
same  with  that  of  M'Intyre,  to  which  it  refers. 

There  was  a  general  replication  to  tliese  answers,  and  the 
accounts  referred  to  a  master,  by  order  of  the  court ;  when  liis 
report  came  in,  many  exceptions  were  filed  to  it  on  both  sides  ; 
and  upon  hearing,  the  court  set  aside  the  report,  and  returned 
it  again  to  the  master,  with  directions  as  to  the  principles  on 
which  it  was  to  be  stated.  A  good  deal  of  testimony  was 
taken  on  both  sides,  and  the  master  made  a  second  report  at 
April  term,  1839,  according  to  which  the  respondents  had  paid 
$2,031.05,  beyond  the  assets  which  came  to  their  hands. 
Many  exceptions  were  again  filed  on  both  sides  to  this  report, 
and  it  was  by  order  of  the  court  again  returned  to  the  master, 
with  directions  to  take  further  proof  as  to  one  of  the  items  in 
controversy. 

In  the  latter  end  of  August,  1839,  while  the  accounts  were 
pending  before  tlie  master,  as  hereinl)efore  mentioned.  Hobby 
went  to  New  York,  where  Kelsey  resided  and  was  carrying  on 
business;  and  a  few  days  after  he  arrived  there,  he  was 
arrested  at  the  suit  of  Kelsey  and  M'Intyre,  upon  a  claim  for 


KELSKY    V.    IIOBI'.V.  223 

$4,000  as  (laniao(>s  for  not  lia\iii^  saved  tliciii  liannless  against 
the  debt  due  the  Hrancli  l)ank  of  the  I'nited  Slates,  according 
to  his  covenant  in  the  agreement  hereinbefore  mentioned.  It 
seems  that  Kelsey  was  advised  by  his  counsel  in  New  York 
that  this  chiim  couhl  not  be  alhiwed  Iiim  in  tlie  chancery  suit, 
because  the  damages  were  nnli(ivii(lated.  Heing  a  stranger  in 
the  city,  he  found  diHicuhy  in  procuring  special  bail.  But  an 
acquaintance  whom  he  had  occasionally  met  in  society,  and 
to  whom  he  api)lied,  entered  into  a  bail  bond  to  the  slu'i'ill, 
-conditioned  that  he  would  appear  to  the?  suit  and  put  in 
special  bail  within  twenty  days  after  the  4th  of  8e[)tember 
then  next  ensuing;  Hobby  assuring  him  that  he  exjiected 
some  of  his  southern  friends  to  be  in  New  York  in  a  ftnv  days, 
and  that  he  would  then  lie  able  to  relieve  liim.  The  party 
who  thus  became  his  security  informed  Hobby,  in  the  presence 
of  the  ofhcer  in  whose  custody  he  was,  that  he  could  not 
justify  as  special  bail  ;  and  he  was  not,  therefore,  accepted  as 
security  in  the  bond  until  the  officer  consulted  Kelsey's 
counsel  and  received  his  consent. 

The  southern  friends  of  whom  Hobby  spoke,  when  they 
arrived,  offered  to  become  his  s]')ecial  bail,  but  not  living  in 
the  state  of  New  York,  they  could  not  be  taken  without  the 
consent  of  Kelsey.  And  Hobby  remained  in  New  York,  un- 
able to  procure  special  bail  until  the  (ith  of  September,  when 
he  signed  an  admission  of  the  correctness  of  an  account  con- 
cerning the  whole  controversy  in  the  cii'cuit  court,  which  had 
been  prepared  some  time  before  by  one  of  Kelsey's  clerks. 
According  to  this  account,  Kelsey  and  MTntyre  had  paid 
$15,859.73,  under  the  agreement  with  Hobby,  beyond  the 
amount  of  the  partnership  funds  that  came  to  their  hands. 
And  at  the  same  time  that  he  signed  the  account  he  executed 
the  following  release  : 

Account  of  C.  Kelsey  and  Company  ivitlt  the  old  Concern  of  C. 
Kelsey  and  Company.  Vnltcd  IStafes,  SoidJi  Carolina  Disfrict. 
Being  Sidli  District,  United  States. 

A.  M.  Hobby  and  Thomas  C.  Bond       ^  >,.  ,.         ■,    ^ 

^  ^  I  Now  pcndnig    before 

Charles  Kelsey  and  Charles  iM'Jntyre,  j 

In  Chancery. 
In  this  case,  the  parties,  Alfred  M.  Hobby  and  Charles  Kel- 


224  EQUITY    PLEADING. 

sey,  have  come  together,  and  examined  the  subject-matter  in 
dispute,  and  they  find  the  within  account  correct,  and  it  is 
hereby  admitted  to  be  correct,  and  every  entry  in  it.  And 
they  do  not  deem  it  just  or  equitable  that  said  suit  should  be 
farther  prosecuted.  And  in  consideration  of  the  premises,  and 
$1  paid,  the  parties  in  said  suit  hereby  discharge  eacdi  other 
from  all  demand  in  the  same.  And  each  party  releases  and 
discharges  the  other  from  all  demand  of  ever}'  name  and 
nature,  and  agree  that  the  said  suit  should  be  discontinued. 
As  witness  our  hands  and  seals,  this  Gth  day  of  September,  1839. 

A.  M.  Hobby,  [l.  s.] 
C.  Kelsey.        [l.  s.] 
Witness  to  the  signatures  and  seals  of  A.  M.  Plobby  and 
C.  Kelsey  : 

Gko.  H.  Kelsey, 
B.  A.  Hegemon. 

This  release  was  attached  to  the  account  settled  at  the  same 
time ;  and  a  letter  written  by  Hobby  to  his  counsel,  and 
shown  to  Kelsey,  stating  that  they  had  come  to  a  settlement, 
and  directing  the  suit  in  chancery  to  be  discontinued  ;  and 
Hobby  was  thereupon  discharged  from  the  arrest,  and  shortly 
afterwards  left  New  York. 

On  the  Sth  of  January,  1840,  the  release  and  settlement 
above  mentioned  were  produced  in  court  by  the  solicitors  for 
the  respondents,  and  a  motion  thereupon  made  to  disuiiss  the 
bill.  This  motion  was  resisted  on  the  part  of  the  complain- 
ant, but  the  juirticular  grounds  upon  which  it  was  objected  to 
are  not  set  forth.  The  order  of  the  court  merely  states  that 
the  release  was  impeached  by  the  complainant's  counsel,  and 
authorizes  both  parties  to  take  testimony  in  regard  to  the 
settlement  and  release.  Under  this  order,  sundry  depositions 
were  taken  and  returned  on  the  i)art  of  the  complainant,  to 
show  that  the  settlement  and  release  were  without  consider- 
ation, and  that  they  were  extorted  from  him  by  the  arrest 
under  which  he  was  detained  in  New  Yoi'k  ;  his  southern 
friends  and  acquaintances  being  refused  as  bail,  because  they 
did  not  reside  in  the  state,  and  he  being  unable  to  leave  the 
city  until  the  temporary  bail  he  had  procured  was  discharged. 
And  sundry  depositions  were  also  taken  and  returned  on  the 
part  of  Kelsey,  to  show  that  there  was  no  harshness  or  oppres- 
sion on   his  part,  and  no  undue  advantage  taken  of  Hobby  ; 


KELSEY    V.    1I()I!1;Y.  2'J;> 

and  tliat  the  scUleniont  and  release  were  freely  and  \(ilnnlaiily 
made. 

The  ease  came  on  tor  linal  heariii<;-  im  the  oOtli  oi"  May, 
1840,  uj)()n  the  report  of  the  master,  and  the  exceptions  liled 
to  it  on  both  sides.  The  report,  which  stated,  as  bel'ore,  a  bal- 
ance of  $2, 031. 95,  in  favor  of  Kelsey  and  M'lntyre,  for  pay- 
ments and  allowances  made  to  them,  over  and  above  the  sums 
realized  by  them  from  the  partnership  etf'ects,  was  set  aside  by 
the  court  ;  and  upon  the  testimony  in  the  cause,  tlie  court 
proceeded  to  pass  a  decree  in  favor  of  the  comi)lainant  for 
$5,500,  with  interest,  and  for  the  Bridge  bills  mentioned  in 
the  agreement,  and  allowing  to  the  respondents  a  .set-off  of 
$300,  for  the  damages  sustained  by  reason  of  the  execution 
issued  against  them  by  the  Branch  Bank  of  the  United  States, 
as  hereinbefore  stated.  P^rom  this  decree  the  respondents 
appealed  to  this  court.  This  statement  of  the  facts  in  the  case 
may  appear  to  be  tedious  ;  but  from  the  nature  of  the  proceed- 
ings it  is  necessary,  in  order  to  show  how  the  points  arose 
which  were  made  in  the  argument  in  this  court. 

The  appellants  contend  that  the  court  of  chancery  had  no 
jurisdiction  beyond  that  of  compelling  a  discovery  of  the 
amount  which  Kelsey  and  M'lntyre  had  received  under  the 
agreement ;  and  that  if  anything  was  found  due  from  them  to 
Hobby,  he  was  bound  to  resort  to  his  action  at  law  on  the 
covenant  in  order  to  recover  it.  But  the  court  think  it  was  a 
very  clear  case  for  relief,  as  well  as  discovery  in  chancery.  It 
is  true  he  had  ceased  to  be  a  partner,  but  the  appellants  had 
received  the  assets  of  the  partnershij)  upon  a  trust  that  they 
would  collect  them  and  pay  the  debts,  for  which  Hobby  was 
liable  as  well  as  themselves ;  and  would  pay  over  to  him  the 
sum  before  mentioned  as  soon  as  tliey  collected  enougli  for 
that  purpose  after  the  payment  of  debts.  He  was,  therefore, 
entitled  to  an  account ;  and  if  upon  that  account  anything 
was  found  due  to  him,  he  was,  Ufmn  well-settled  chancery 
princi|)les,  entitled  to  relief  also. 

Neither  can  the  objection  be  sustained  as  to  the  mode  in 
which  the  amount  due  was  ascertained.  It  is  true,  tliat  ac- 
cording to  the  ordinary  mode  of  proceeding  in  courts  of  equity, 
instead  of  setting  aside  tlie  report  of  the  ma.ster,  the  court 
should  have  passed  its  judgment  upon  each  of  tlie  exceptions, 
or  have  remanded  the  account  to  the  auditor,  with  additional' 
directions  as  to  the  principles  upon  which  it  was  to  be  stated. 
15 


"226  EQUITY    PLEADING. 

And  if  it  had  been  necessary  to  ascertain  precisely  the  amount 
which  the  appellants  had  collected  over  and  above  the  debts 
they  had  paid,  the  proceeding  adopted  by  the  court  would 
have  been  liable  to  the  objections  urged  against  it.  For  the 
decree  could  not  in  that  case  have  been  reviewed  in  the  ap})el- 
late  court,  and  the  exact  balance  ascertained,  unless  the  record 
showed  what  items  were  allowed  and  what  disallowed  in  the 
inferior  court.  But  this  is  not  a  case  of  that  desci'iption.  If 
the  appellants  had  received  the  sum  claimed  by  Hobby  be- 
yond the  amount  of  debts  paid,  it  mattered  not  how  nnich 
more  they  had  received  ;  and  the  case  did  not  require  a  state- 
ment of  the  exact  amount.  And  as  the  evidence,  and  ac- 
counts, and  exceptions,  are  all  in  the  record,  this  court  can 
determine  whether  the  sum  mentioned  is  proved  to  have  been 
collected  or  not.  And  if  it  appears  to  have  been  received,  the 
decree  must  be  affirmed,  even  although  it  may  happen  that 
items  allowed  by  the  circuit  court  are  disallowed  here ;  or 
items  disallowed  l)y  that  court  are  determined  here  to  be 
correct  and  properly  chargeable.  And,  as  all  the  testimony  is 
before  us,  and  the  exceptions  show  all  of  the  disputed  items, 
neither  party  can  be  taken  by  surprise. 

It  would  extend  this  opinion  to  a  most  unreasonable  length, 
if  the  court  were  to  enter  upon  a  particular  and  detailed  ex- 
amination of  the  various  disputed  items,  and  of  the  testimony 
and  calculations  relied  on  by  the  parties  to  support  their 
res|)ective  claims.  Fourteen  exceptions  were  taken  to  the 
auditor's  report  by  the  complainant*;,  and  six  by  the  defend- 
ants;  and  the  evidence  upon  which  they  depend  is  volumi- 
nous. Four  of  them  require  a  particular  examination  and 
comparison  of  different  accounts,  in  order  to  arrive  at  a  just 
conclusion.  We  have  looked  into  tiie  whole  testimony  very 
carefully,  and  unless  the  release  and  settlenient  in  New  York 
is  to  1)0  regarded  as  conclusive,  we  are  satisfied  that  Kelse}^ 
and  M'Intyre  have  received  from  the  partnership  assets  beyond 
the  amount  paid  for  debts,  a  larger  sum  tlian  that  decreed 
against  them  by  the  circuit  court. 

This  brings  us  to  examine  the  release,  and  the  account 
stated  at  the  time  it  was  given. 

Some  objections  have  been  made  as  to  the  manner  in  wliich 
the  release  was  introduced  into  the  proceedings.  It  was  filed  in 
the  cause,  and  a  motion  thereupon  made  to  dismiss  the  bill  ; 
and  it  is  said  that  being  executed  while  the  suit  was  pending 


KELSKY    V.     llOliliY.  22/ 

aiul  after  (lie  answers  were  in,  and  the  aeeounts  before  the  mas- 
ter, it  should  have  been  brought  before  the  court  by  a  cross-bill 
or  supi)leniental  answer,  and  could  Hot  in  that  stage  of  the 
pi'oceeclings  be  noticed  b}'  the  court  in  any  other  way.  It  is  a 
sufficient  answer  to  this  exception  to  say  that  it  was  admitted 
in  evidence  without  exce[)tion,  and  both  parties  treated  it  as 
properly  in  the  cause;  and  the  complainant  proceeded  to  take 
testimony  to  show  that  it  was  obtained  from  him  by  dui'css, 
and  the  defendants  to  show  that  it  was  freely  and  voluntarily 
given.  It  had  the  same  effect  that  it  would  have  had  upon  a 
cross-bill  or  supplemental  answer,  and  the  com})lainant  had 
the  same  opportunity  of  impeaching  it.  And  there  is  no  pro- 
priety in  requiring  technical  and  formal  proceedings,  when 
they  tend  to  embarrass  and  delay  the  administration  of  jus- 
tice, unless  they  are  required  by  some  fixed  princi])les  of 
equity,  law,  or  practice,  which  the  court  would  not  be  at 
liberty  to  disregard. 

The  release  and  account  being  therefore  regularly  before  the 
court,  we  j)roceed  to  inquire  into  their  legal  effect,  and  the  de- 
gree of  weight  to  which  they  are  entitled.  The  effect  of  a  re- 
lease, executed  in  consideration  of  the  settlement  of  accounts 
between  the  parties,  is  clearly  stated  in  Story's  Equity  Plead- 
ings, 529,  §  685.  If  the  account  is  impeached,  the  release  will 
not  prevent  the  court  from  looking  into  the  settlement ;  and 
the  release  in  such  a  case  is  entitled  to  no  greater  force  in  a 
court  of  equity  than  the  settlement  of  the  account  upon  which 
it  was  given.  In  the  case  before  us,  the  settlement  of  the 
account  was  the  only  consideration  for  the  release. 

The  com[)lainant,  who  resides  in  Georgia,  and  who  had 
gone  to  New  York  uj)on  Inisiness,  was  unexjiectedly  arrested 
for  a  claim  which  was  then  jiending  between  the  same  parties 
in  the  circuit  court  of  the  United  States  for  the  district  of 
South  Carolina.  The  suit  was  brought  for  damages  alleged 
to  have  been  sustained  by  the  failure  of  Plobby  to  indemnify 
the  appellants  against  the  claims  of  the  Branch  Hank  of  (he 
United  States  hereinbefore  mentioned.  It  is  true  that  the 
plaintifl's  in  the  suit  were  advised  by  counsel  that  they  could 
not  be  allowed  for  these  damages  in  the  proceeding  in  efjuity, 
because  they  were  unliquidated;  and  they  ought  not  there- 
fore be  held  accountal)h'  for  that  error.  Yet  it  is  very  clear 
that  the  suit  should  not  have  been  brought;  bc^cause  these 
damages  formed  one  of  the  items  in  conti'oversy  between  the 


228  EQUITY    PLEADING. 

parties  in  the  suit  in  chancery,  which  had  been  so  long  pend- 
ing between  them.  And  that  court  had  not  only  jurisdiction 
over  the  subject,  but  it  was  bound  to  ascertain  and  allow  them 
before  it  could  adjust  the  account  and  grant  the  relief  to 
which  the  complainant  was  entitled.  The  mode  by  which  a 
court  of  chancery  ascertains  the  amount  in  cases  of  that 
description,  is  either  by  a  reference  to  the  master  or  by  send- 
ing an  issue  of  quantum  damnificatus  to  be  tried  by  a  jury. 
The  cases  upon  this  subject  are  collected  and  arranged  in  2 
Story's  Commentaries  on  Equity,  c.  19,  p.  104.  And  the 
damages  in  question  were  in  fact  ascertained  by  the  court,  and 
deducted  from  the  amount  due  to  Hobby  in  the  decree  now 
under  examination.  But,  nevertheless,  as  Kelsey  in  this 
respect  acted  by  the  advice  of  his  counsel,  if  the  settlement 
which  afterwards  took  place  had  been  confined  to  the  claim  he 
was  seeking  to  enforce,  the  agreement  between  the  parties  to 
fix  the  damages  at  any  particular  amount  would  have  bound 
Hobby,  unless  it  was  evidently  unreasonable  and  exorbitant, 
or  he  could  prove  it  was  obtained  by  improper  means. 

The  mere  circumstance  of  his  being  detained  in  New  York, 
by  reason  of  the  process  issued  to  recover  the  amount  claimed, 
would  be  no  objection  to  the  validity  of  the  agreement.  But 
while  Hobby  was  detained  in  the  manner  before  stated,  and 
unable  to  procure  special  bail,  Kelsey  obtained  from  him  a 
release  of  matters  not  embraced  in  this  suit,  and  much  more 
imj)ortant  in  amount,  and  which  Hobby  had  been  insisting 
on  for  years,  and  for  which  he  was  prosecuting  a  suit  in  the 
circuit  court.  Neither  the  circumstances  under  which  the 
release  was  taken  and  the  account  connected  with  it  settled, 
nor  the  contents  of  these  papers,  can  entitle  them  to  weight  in 
a  court  of  equitv.  There  is  no  evidence  of  any  negotiations 
between  the  parties  respecting  this  arrangement  previous  to 
the  interview  at  which  these  papers  were  signed.  Upon  that 
occasion  one  of  the  clerks  of  Kelsey  was  present.  He  is  one 
of  the  witnesses  to  the  release.  He  does  not  say  who  proposed 
a  settlement,  but  he  states  that  the  account  admitted  by 
Hobby  had  been  prepared  a  long  time  before  by  one  of  Mr. 
Kelsey's  clerks;  that  the  examination  of  the  account  did  not 
take  more  than  ten  minutes.  And  the  interview  at  which  it 
was  acknowledged  and  signed,  and  the  release  executed,  and 
a  letter  written  by  Hobby  to  his  counsel  in  South  Carolina  to 
discontinue  the  suit  against  Kelse}''  and  M'Intyre,  did  not  last 
more  than  an  hour. 


DEXTER    V.    ARNOLD.  229 

This  is  the  testimony  of  the  witness.  No  hooks  or  papers 
appear  to  have  heen  produced,  or  to  have  been  in  tlie  city  of 
New  York  at  the  time,  in  tiie  |)Osse.ssion  of  eitlier  Jiarty,  ex- 
cept the  account  produced  by  Kelsey  and  signed  by  him  and 
Hobby.  And  yet  the  release  states  that  the  ])arties  had 
"  come  together  and  examined  the  subject-nnitter  in  dispute," 
and  found  that  account  correct,  and  thereby  "admitted  it  to 
be  correct  and  every  entry  in  it."  And  the  account,  too, 
which  is  thus  admitted,  contains  items  for  "exchange  })aid," 
"  loss  by  discount  on  money  received  in  collection  of  the 
partnership  debts,"  "  rent  for  counting-room,"  traveling  ex- 
penses, postage,  clerk  hire,  incidental  expenses,  and  sundry 
others  which  would  have  required  much  time  to  examine, 
and  the  production  of  many  vouchers  before  Ilobb}^  could 
have  known  whether  they  were  correct  or  not.  The  account 
in  important  particulars  differs  from  the  one  on  wliich  Kelsey 
and  M'Intyre  had  themselves  relied  in  the  circuit  court  of 
South  Carolina;  and  is  more  unfavorable  to  Ilobby  by  about 
$20,000,  than  the  one  which  Hobby  had  been  so  long  insist- 
ing on  in  his  suit.  Such  an  account  and  release,  executed 
under  such  circumstances,  are  not  entitled  to  the  considera- 
tion and  weight  which  belong  to  instruments  freely  executed, 
and  with  opportunities  of  knowledge  and  examination.  So 
far  from  strengthening  the  claims  of  the  appellants,  they,  in 
the  judgment  of  the  court,  are  calculated  rather  to  bring  sus- 
picion upon  them.  They  certainly  cannot  outw(Mgh  the  testi- 
mony taken  in  the  chancery  proceedings,  and  the  decree  of 
the  circuit  court  is  therefore  affirmed. 

DEXTER  V.  ARNOLD. 
(Circuit  Court  for  Rhode  Island:  2  Sumner,  108-132.     1834.) 

Statement  of  Facts. — Bill  in  equity  to  redeem  a  mort- 
gaged estate.  The  case  came  on  to  be  heard  on  the  report  of 
the  master,  to  whom  the  cause  was  referred  for  an  account. 
The  report  of  the  master  is  very  long,  and  there  were 
numerous  exceptions  to  it,  filed  by  both  parties.  The  general 
facts  in  the  case  appear  in  1  Sumner,  101),  to  which  inference 
is  made. 

The  exceptions  of  the  plaintilTs  ai'c  :  (1)  That  the  master 
stated  that  there  was  due  on  the  mortgage  -SI  ,o()('».3(),  whereas 
there  was  nothing  due.  (2)  That  the  mastei'  should  have  in- 
quired   into  the  original  consideration  of  the  mortgage,  which 


230  EQUITY    PLEADING. 

he  declined  to  do.  (3)  That  the  master  allowed  to  defendants 
the  full  amount  of  the  sui)posed  consideration,  which  he  should 
not  have  done.  (4)  That  the  master  allowed  a  deduction  to 
the  mortgagee  from  the  rent  of  the  premises,  because  they  be- 
came dilapidated  while  in  his  hands,  whereas  he  should  have 
charged  the  full  annual  value,  deducting  a  proper  sum  for 
repairs.  (5)  That  the  master  charged  nothing  to  the  mort- 
gagee for  the  dilapidation  of  the  buildings  while  in  his  posses- 
sion. (6)  That  the  master  charged  nothing  to  the  mortgagee 
on  account  of  a  note"  for  £100,  which  it  is  alleged  was  twice 
paid  to  the  mortgagee.  (7)  That  the  master  refused  to  allow 
plaintiffs  $192,  paid  by  mistake  to  the  mortgagee  for  insurance 
on  the  schooner  Fame," no  such  sum  being  due  for  insurance. 
(8)  That  the  master  refused  to  charge  the  defendants  with 
$573.87,  paid  to  the  mortgagee  to  take  up  Rogers'  note  against 
the  mortgagor,  and  to  receive  evidence  on  that  subject.  (9 
and  10)  Other  sums  which  the  master  refused  to  allow.  (11) 
That  the  master  made  improper  charges  of  interest.  (12) 
That  the  master  did  not  require  of  defendants  the  production 
of  tiie  cash  books  of  the  mortgagee.  (13)  That  the  master 
refused  to  permit  j)laintiffs  to  examine  such  books  as  he  did 
recjuire  defendants  to  produce.  (14)  Unimportant.  (15)  That 
the  master  refused  to  receive  evidence  impeaching  the  account 
of  1801.     (1(3)  Unimportant. 

Tlie  defendants'  exceptions  to  the  report,  cited  by  the  court 
in  the  opinion  :  (1)  That  the  complainants  were  allowed  one- 
third  of  the  amount  received  for  the  Fox  Point  lots.  (2)  That 
the  master  has  charged  the  estate  of  Tliomas  Arnokl  with 
rents  that  were  never  received  by  him.  (3)  That  the  master 
allowed  a  larger  amount  of  rents  tlian  are  contained  in  the 
accounts  of  the  administratrix. 

The  other  exceptions  of  the  defendants  were  unimportant. 

Opinion  by  Story,  J. 

The  exceptions  have  been  argued  by  the  learned  counsel  at 
large,  but  our  opinion  will  be  briefly  stated  upon  all  of  them, 
as  we  do  not  think  that  they  involve  any  serious  difficulty. 
We  shall  first  consider  the  exceptions  of  the  plaintiffs. 

1.  The  first  exception  is  utterly  unmaintainable.  It  is  too 
loose  and  general  in  its  terms  and  points  to  no  particulars. 
It  comes  to  nothing,  unless  specific  errors  are  shown  in  the 
re])ort,  and  those  errors,  if  they  exist,  should  have  been 
brought  directly  to  the  view  of  the  court  in  the  form  of  the 


DEXTER    V.    Ar.XOLI).  201 

exception  itself.  At  present  it  amounts  only  to  a  "eneral 
assi^innKnit  of  errors,  and  the  argument  on  this  exception  has 
shown  none. 

2  and  3.  The  second  and  third  exce})tions  ap})l_v  to  tlie 
refusal  of  the  inaster  to  incjuiix'  into  tlie  oi'ioinal  consideration 
of  the  mortgage.  Under  tho  circumstances  the  master  was 
perfectly  right.  In  the  tirst  place,  in  the  account  settled  be- 
tween the  original  parties,  on  31st  of  INIarch,  1801,  the  nioi't- 
gage  was  treated  as  a  good  subsisting  mortgage  for  the  full 
amount  of  the  debt  stated  therein.  In  the  next  place  the  bill 
does  not  chai'ge  tliat  the  consideration  of  the  mortgage  was 
nominal,  or  less  than  the  amount  stated  therein ;  or  that 
there  is  any  error  or  mistake  therein  ;  neither  does  it  ask  for 
any  examination  or  overhauling  of  the  original  considei'ation 
upon  any  alleged  error  or  mistake.  It  was  clearly,  therefore, 
a  matter  not  properly  in  issue  before  the  master.  See  Cham- 
bers V.  Gohlwin,  9  Ves.  Jr.,  265,  206. 

5.  The  remarks  dis})0se  also  of  the  fifth  exception,  which  is 
founded  upon  the  supposed  dilapidations  of  the  buildings 
while  in  possession  of  the  mortgagee.  There  is  no  proof  what- 
eyer  that  these  were  caused  by  his  wilful  default  or  gross  neg- 
ligence ;  but  they  were  the  silent  eflects  of  waste  and  decaj^ 
from  time. 

6,  7,  8,  10.  The  sixth,  seyenth,  eighth  and  tenth  exceptions 
are  disposed  of  by  two  simjjle  considerations.  (1)  They  all 
relate  to  matter  whicli  had  been  already  disposed  of  in  a 
former  suit  (Dexter  v.  Arnold,  5  Mason,  304).  (2)  If  Thomas 
Arnold  (the  intestate)  was  accountable  at  all  for  any  of  these 
matters,  he  was  so  in  a  suit  brought  against  him  as  agent  or 
administrator  of  Jonathan  Arnold,  and  not  in  this  suit,  which 
is  merely  a  bill  to  redeem  a  mortgage. 

11.  The  eleventh  exception  proceeds  upon  the  objection 
that  the  master  has  allowed  interest  where  none  was  due. 
This  exception  proceeds  u})on  tlie  supposition  that  the  second 
and  third  excejjtions  were  well  founded.  AVe  haye  already 
decided  that  the  master  was  right  in  holding  the  consideration 
stated  in  the  mortgage  deed  to  be  the  true  sum  due,  as  ascer- 
tained in  the  account  settled  in  1801. 

12.  The  twelfth  exception  is,  because  the  books  of  Thomas 
Arnold  were  not  produced  before  the  master,  or  recpiired  by 
him  to  be  produced.  This  is  founded  in  a  clear  mistake,  for 
the  affidavits  of  Anna  Arnold  and  James  Arnold  establish  the 
fact  that  they  were  ]^roduced. 


232  EQUITY    PLEADING. 

13.  The  thirteenth  exception  is  to  the  supposed  denial  to 
the  phiintitfs  of  the  right  of  examining  the  books  of  Thomas 
Arnold,  produced  under  notice  before  the  master.  This  ex- 
ception has  no  facts  on  which  to  rest  it  in  the  master's 
report.  The  plaintiffs  had  no  right  to  examine  those  books 
generall}' ;  but  only  such  parts  as  related  to  entries,  charges 
and  accounts  relative  to  the  matters  in  controversy  in  the  suit. 
If  we  pass  aside  from  the  master's  rej)ort,  it  appears  by  the 
affidavits  already  alluded  to  that  a  full  examination  as  to 
these  matters  was  allowed,  so  far  as  any  of  the  books  contained 
entries,  charges  or  accounts  relative  thereto. 

14.  The  fourteenth  exception  is,  that  the  report  states  no 
reason  for  the  refusal  of  Samuel  G.  Arnold  to  join  in  making 
repairs  on  the  premises.  That  was  not  necessary.  It  was 
mere  matter  of  evidence  for  the  consideration  of  the  master,  in 
examining  the  point,  whether  there  was  any  wilful  default  or 
gross  negligence  of  the  mortgagee  in  not  making  repairs  upon 
the  premises. 

3.  The  third  exception  is,  that  the  master  has  allowed  a 
much  larger  amount  of  rents  than  is  contained  in  the  accounts 
of  the  administratrix  of  the  mortgagee  and  admitted  to  have 
been  received  by  him.  We  are  of  opinion  tliat  the  master  was 
right,  for  the  reasons  stated  by  him.  The  mortgagee  kept  no 
regular  accounts  ;  and  the  master  has,  therefore,  been  com- 
pelled to  exercise  a  sound  discretion  upon  the  whole  evidence 
as  to  the  amount  with  which  he  should  be  charged  for  rents 
and  profits.  The  doctrine  contained  in  Hughes  v.  Williams, 
12  Ves.  Jr.,  493,  and  in  Williams  v.  Price,  1  Powell  on  Mort., 
by  Coventry  &  Rand,  949  (a),  note;  S.  C,  1  Sim.  &  Stu.,  581, 
and  Anonymous,  1  Vern.,  45,  shows  the  true  grounds  on 
which  courts  of  equity  proceed  in  cases  of  this  nature. 

4.  The  fourth  exception  insists  that  the  master  should  not 
have  estimated  the  rents  for  which  the  mortgagee  is  charged 
upon  his  general  judgment:  but  should  have  charged  only 
such  a  rent  as  might  have  been  obtained  by  a  letting  at  pub- 
lic auction.  W^e  think  otherwise.  The  master  was  bound  to 
charge  the  mortgagee  with  a  reasonable  rent.  What,  under 
all  the  circumstances,  was  a  reasonable  rent  was  matter  for 
the  exercise  of  a  sound  discretion,  upon  all  the  circumstances 
of  the  ca.se.  An  auction  rent  would  not  in  many  cases  aflbrd 
either  a  just  or  a  satisfactory  standard  of  the  real  value  for 
wdticli  the  premises  might  be  let,  or  at  which  the  mortgagee 
should  he  entitled  to  occupy  them. 


STORY   V.    r,iviN(;.sr<)N.  238 

5.  The  fifth  oxception  is  that  the  inastiT  has  reported  that 
Thomas  Arnold  kept  no  regular  accounts,  which  is  an  incor- 
rect statement.  We  see  no  proof  of  th^at.  The  master  was  the 
proper  judge  of  that  fact  upon  examining  the  books  and  the 
other  evidence  in  the  case.  There  is  no  evidence  before  us 
that  establishes  in  the  slightest  degree  that  his  conclusion  was 
incorrect. 

6.  The  sixth  exception  is  founded  on  the  supposed  incor- 
rectness of  the  charge  of  cellar  rent.  But  there  is  not  any 
evidence  whatsoever  upon  the  face  of  the  report  which  shows 
any  such  error  of  the  ma.ster ;  and,  therefore,  the  report  must 
stand.  We  cannot  presume  errors,  or  go  into  evidence  in 
support  of  them  which  was  not  laid  before  the  master,  or 
brought  by  him  to  the  notice  of  the  court.  Exceptions  must 
be  made  to  matters  apparent  upon  the  face  of  the  report,  or 
upon  the  accom})anying  documents  and  proofs  laid  before  the 
court  upon  the  allegations  and  objections  of  the  parties. 

7.  8,  9,  10,  11.  All  the  other  exceptions  are  founded  in  ob- 
jections to  the  master's  estimate  and  allowance  of  rents  charged 
against  the  mortgagee.  We  are  of  opinion  that,  upon  the  cir- 
cumstances stated  in  his  report,  that  estimate  was  })erfectly 
just  and  reasonable.  It  was  a  matter  for  his  judgment ;  and 
there  are  no  facts  in  the  case  which  impugn  the  ])ropriety  or 
soundness  of  his  conclusions. 

Upon  the  whole,  our  judgment  is  that  all  the  exceptions  on 
both  sides  ought  to  be  overruled  and  the  report  ought  to  .stand 
confirmed. 

Decree  accordingly. 

Note. — Only  so  much  of  this  case  is  reported  as  rohites  to  Juiuity  l'le;idin,i;  and 
Practice.  ] 

STORY  V.  LIVINGSTON. 

(13  Peters,  359-377.     1839.) 

Ojiinion  by  Mr.  Justice  Waynk. 

Statement  of  Facts. — This  cause  having  been  before  this 
court  at  its  term  in  1837,  it  was  then  decreed  that  the  decree 
of  the  district  court,  dismissing  the  bill  of  the  complainant, 
should  be  reversed  ;  that  the  cause  should  be  sent  back  for 
further  proceedings  in  the  court  below,  with  directions  that  it 
should  be  referred  to  a  master,  to  take  an  account  between  the 
parties.  The  mandate  then  recites  the  principles  upon  which 
the  account  was  to  be  made;  provides  the  time  within  which 


234  EQUITY    PLEADING. 

any  sum  that  may  be  found  to  bc3  duo  to  either  of  tlie  parties 
should  be  paid  after  the  entry  of  a  final  decree  in  the  court 
below  ;  directs,  if  a  sum  shall  be  found  due  to  the  complain- 
ant, a  suri'ender  and  reconveyance  of  the  property  from  the 
defendant  to  the  complainant,  or  to  such  person  or  [)ersons  as 
shall  be  shown  entitled  to  the  same  ;  and  further  orders,  in  the 
event  of  a  sum  being  found  to  be  due  to  the  defendant,  if  it 
shall  not  be  j'jiid  within  six  months  after  a  final  decree  of  the 
district  court  upon  the  roaster's  report,  that  the  })ro}ierty  shall 
be  sold  by  order  of  the  district  court,  at  such  time  and  notice 
as  the  court  shall  direct,  and  that  the  proceeds  be  first  applied 
to  the  payment  of  the  balance  due  the  defendant,  and  that  the 
residue  thereof  be  paid  to  the  complainant. 

In  pursuance  of  the  mandate,  tlie  district  court  ap))ointed 
Duncan  N.  liennen  master,  to  examine  into  and  report  u})on 
tlie  account  according  to  the  rules  and  principles  established 
in  the  judgment  of  this  court.  The  master  was  sworn  in  open 
court,  faithfully  to  pei'form  the  duties  of  his  a])pointment. 
On  the  same  day  the  master  ordered  a  meeting  to  be  held  on 
the  6th  of  March,  which  was  adjourned  to  the  8tli  ;  when  he 
commenced  the  i-eference  by  taking  testimony  in  behalf  of  the 
complainant,  and  it  was  adjourned  to  the  next  day.  ITie 
meeting  was  then  adjourned  to  the  24th  March,  when  other 
testimony  was  taken  ;  was  then  adjourned  to  the  1st  April ; 
thence,  on  the  application  of  tliC  defendant,  was  adjourned  to 
the  15th  April,  and  the  reference  was  closed  the  day  after. 
All  the  meetings  were  attended  by  the  parties  ;  the  complain- 
ant being  represented  by  counsel,  and  the  defendant  having 
been,  personally  present,  aided  by  counsel.  After  these  pro- 
ceedings were  had,  the  defendant's  counsel,  in  November  fol- 
lowing, obtained  an  order  from  the  court  upon  the  complain- 
ant, to  show  cause  why  the  "suit  should  not  be  stricken  from 
the  docket,  the  bill  of  the  comj)lainant  dismissed,  or  the  suit 
abated;"  which  rule  was  returnable  on  the  Jst  December. 
The  grounds  relied  upon  to  sustain  this  motion  were :  1.  That 
Edward  Livingston,  the  former  complainant,  departed  this  life 

on day  of ,  and  before  the  hearing  of  the  cause  in 

this  court  at  the  spring  term  thereof  in  1836. 

2.  The  said  Livingston  departed  this  life  before  the  making 
or  enrollment  of  the  decree  at  the  spring  term  of  the  year 
1836;  conseciuently  the  court  could  not  then  entertain  any 
jurisdiction  of  the  cause. 


STORY    V.    LlVINciSTON.  Z.U) 

3.  This  cause  lias  never  been  regularly  revived  in  the  iiaiiio 
of  the  j)resent  complainant;  nor  coukl  it  be  so  revived  by  the 
laws  and  usa<;es  of  chaiiceiy  jtractice,  ^Ji's.  Ijvinoston  claitn- 
inji;  as  a  devisee.  This  rule  was  continued  from  time  to  time 
under  sundry  orders  of  the  court,  until  the  iSth  of  Deei'mbei', 
when  the  court  rejected  and  overruled  the  motion.  This 
motion  we  have  noticed,  not  oidy  because  it  was  a  sinii;ular 
attempt  to  oust  the  jui'isdielion  of  the  conrt  over  the  cause 
after  it  had  been  decided  on  its  merits  in  the  supreme  court, 
and  the  court  below  was  actinsj;  under  its  mandate,  but  because 
from  the  time  when  it  was  made,  and  when  the  rule  was 
granted,  the  defendant  having  not  before  objected  to  the 
reference  to  the  master,  and  having  joined  in  all  the  proceed- 
ings under  that  reference,  it  cannot  be  viewed  in  any  other 
light  than  an  attempt  to  prevent  the  master's  report  from 
being  returned  to  the  court,  instead  of  contesting  its  conclu- 
sion, and  the  master's  proceedings  under  the  mandate,  by 
regular  exceptions.  It  presents  an  anomaly  without  any 
parallel  in  the  history  of  chancery  proceedings;  placing  an 
inferior  tribunal,  acting  under  the  nnuidate  of  a  superior,  in 
the  attitude  of  reversing  the  judgment  of  the  latter;  calling 
upon  it  to  disregard  the  mandate  altogether;  to  revoke  its  own 
proceedings  under  such  mandate;  and,  in  effect,  to  act  in  con- 
tradiction to  the  sole  authority  by  which  the  di.strict  court 
was  in  possession  of  the  cau.se.  But  the  motion  being  over- 
ruled, on  the  same  day  the  master  presented  his  rejwrt  to  the 
court,  which  was  read  and  filed.  The  following  exceptions 
were  then  made  to  the  report  of  the  master  by  the  defendant: 

1.  That  chancery  practice  has  been  abolished  by  a  rule  of 
the  court,  and  such  proceeding  is  unknown  to  the  ])i'actice  of 
the  court. 

2.  The  master  has  erred  in  not  allowing  to  the  defendant 
the  $1,000,  with  interest,  paid  to  Morse,  or  some  part  thereof. 

3.  The  master's  rei)ort  does  not  show  that  it  reports  all  the 
evidence  taken  before  the  master. 

4.  The  master,  in  making  his  estinuites  and  calculations, 
has  not  pursued  the  mandate  of  the  court. 

5.  It  appears,  from  the  master's  re])ort,  that  the  stores  were 
rented  from  November  to  November;  and  he  erred  in  assum- 
ing the  1st  of  April  as  the  period  of  payment  of  annual  rent. 

6.  A  rea.sonable  allowance  should  have  been  made  to  Story 
for  the  costs  and  risks  of  collecting  rents. 


236  PJQUITY    PLEADING. 

7.  The  master  erred  in  all  his  charges  against  the  defend- 
ant ;  and  failed  to  allow  the  defendant  his  proper  credits. 

All  of  these  exceptions,  except  the  third,  are  irregularly 
taken,  and  might  be  disposed  of  by  us  without  any  examina- 
tion of  them  in  connection  with  the  master's  report. 

They  are  too  general ;  indicate  nothing  but  dissatisfaction 
with  the  entire  report;  and  furnish  no  specific  grounds,  as 
they  should  have  done,  wherein  the  defendant  has  suffered  any 
wrong,  or  as  to  which  of  his  rights  have  been  disregarded. 

Strictly,  in  chancery  practice,  though  it  is  different  in  some 
of  our  states,  no  exceptions  to  a  master's  report  can  be  made 
which  were  not  taken  before  the  master;  the  object  being  to 
save  time  and  to  give  him  an  opportunity  to  correct  his  errors 
or  reconsider  his  opinion.  Dick.,  103.  A  party  neglecting  to 
bring  in  objections  cannot  afterwards  except  to  the  report 
(Harr.  Ch.,  479),  unless  the  court,  on  motion,  see  reason  to  be 
dissatisfied  with  the  report,  and  refer  it  to  the  master  to  review 
his  report,  with  liberty  to  the  party  to  take  objection  to  it.  1 
Dick.,  290;  Madd.,  340,  555.  But  without  restricting  excep- 
tions to  this  course,  we  must  observe  that  exceptions  to  a 
report  of  a  master  must  state,  article  by  article,  those  parts  of 
the  report  which  are  intended  to  be  excepted  to.  Exceptions 
to  reports  of  masters  in  chancery  are  in  the  nature  of  a  special 
demurrer;  and  the  party  objecting  must  point  out  the  error, 
otherwise  the  part  not  excepted  to  will  be  taken  as  admitted. 
Wilkes  V.  Rogers,  6  Johns.,  566. 

The  court  directed  the  master  to  amend  his  report,  so  as  to 
state  that  it  contained  all  the  evidence  given  under  the 
reference,  which  the  master  did  b}^  his  certificate;  and  this 
disposes  of  the  defendant's  third  exception.  To  that  certificate 
the  defendant's  counsel  did  not  object.  In  the  subsequent 
proceedings  in  the  court,  upon  the  report,  it  was  treated  by 
both  parties  as  conclusive  of  the  fact  that  all  the  evidence  had 
been  disclosed  in  the  report  as  it  was  originally  made.  The 
report  was  then  before  the  court  upon  exceptions  by  the 
defendant,  which  were  argued  by  the  counsel  of  the  respective 
parties;  and  the  court  overruled  the  exceptions  on  the  15th  of 
January,  and  decreed  the  defendant  to  pay  to  the  complainant, 
within  six  months  from  that  day,  $32,958.18,  the  sum  found 
by  the  master  to  be  due  by  the  defendant  to  the  complainant; 
and  further  "  decreed  that  the  master's  report  be  in  all  other 
respects   confirmed,    and   that   the  defendant  conform  to  the 


STOllY    V.    LIVINGSTON.  237 

decree  of  the  supreme,  court  in  tlic  case."  After  this  decree 
was  made,  the  defendant  tiled  a  {)etition  for  a  re-hearin<;. 
The  grounds  taken  in  the  petition  are  reasons  against  the 
confirmation  of  the  report  on  account  of  the  court's  proceed- 
ings ujion  it,  by  which  the  defendant  alk^ged  he  had  been 
deprived  of  an  opportunity  to  exce})t  to  the  report  as  it  had 
been  amended.  Tliat  the  cause  upon  the  report  had  not  been 
docketed  regularly  for  trial,  on  account  of  the  master's  having 
taken  testimony  viva  voce,  when  it  should  have  been  by  depo- 
sitions upon  interrogatories  ;  that  the  court  in  its  decree  had  not 
disposed  of  the  question  of  costs  ;  and  that  the  court,  in  its  gen- 
eral direction  to  the  defendant  to  do  all  things  directed  by  the 
mandate  of  the  supreme  court,  had  left  it  uncertain  to  whom 
the  defendant  was  to  surrender  and  to  convey  the  ])roperty. 
The  court,  after  this  petition  had  been  answered  by  the  com- 
plainant, heard  an  argument  upon  the  motion.  The  judge 
finally  overruled  the  application  for  a  rehearing,  and  decreed 
that  the  defendant  should  surrender  and  reconvey  the  property 
described  in  the  bill  of  complaint,  to  Louisa  Livingston,  widow 
and  executi'ix.  and  devisee  of  Edward  Livingston,  deceased, 
and  to  Cora  Barton,  daughter  and  forced  heir  of  said  Edward 
Livingston,  in  conformity  to  the  decree  of  the  supreme  court 
of  the  United  States,  and  to  the  decree  heretolbre  made,  in 
pursuance  thereof,  by  this  court.  This  decree  was  made  on 
the  0th  of  February,  1837.  The  cause  is  now  regularly  before 
this  court,  on  an  appeal  from  the  decree  of  the  district  court, 
overruling  the  defendant's  exceptions  to  the  master's  report, 
and  confirming  the  same. 

But  before  we  consider  the  exceptions,  we  think  it  }>r()per  to 
notice  the  petition  for  a  rehearing.  Upon  any  matters  in  that 
petition,  not  directly  touching  the  master's  report,  but  assum- 
ing what  this  court  did  or  did  not  decide  or  direct  to  be  done 
by  its  mandate,  it  is  only  necessary  to  repeat  what  this  court 
said  in  Ex  parte  Story,  12  Pet.,  343.  "The  merits  of  the  con- 
troversy w^ere  finally  decided  by  the  court,  and  its  mandate  to 
the  district  court  requii-ed  only  the  execution  of  its  decree." 
As  to  the  objection  that  the  defendant  had  not  an  opportunity 
to  except  to  the  master's  report  as  it  was  xnnended — it  is 
founded  upon  a  misconception  of  the  fact;  for  the  defendant's 
third  exception,  that  the  report  did  not  show  that  it  reports 
the  evidence — the  court  sim])ly  allowed  the  master  to  certify 
that  it  did.     If  this  certificate  had  not  been   allowed  by  the 


238  EQUITY    PLEADING. 

court,  the  exception  could  not  have  i)revaile(l,  unless  the 
several  allegations,  that  the  evidence  did  not  appear  in  the 
report,  had  been  accompanied  by  a  specification  of  the  })artic- 
ulars  in  which  it  was  deficient. 

On  such  an  exception,  sup])orted  by  the  oath  of  the  party 
making  it,  or  without  oath  if  the  opj)Osite  party  joins  in  the 
exception  without  requiring  the  exce))tion  to  be  verified  by 
affidavit,  the  court  would  call  upon  the  master  to  report  the 
evidence.  We  have  noticed  this  exception  as  a  point  of 
practice.  The  truth  of  the  exceptions  not  appearing  on  the 
face  of  the  proceedings,  and  not  being  su|>ported  by  affidavit  or 
otherwise,  the  court  cannot  notice  the  exceptions.  Thompson 
V.  O'Daniel,  2  Hawk.,  307. 

The  next  objection  in  the  petition  for  a  rehearing,  that  the 
master,  under  the  order  of  the  court,  did  not  possess  the  power 
to  take  testimony,  and  that,  if  he  did  possess  such  power,  then 
it  was  irregularly  exercised,  because  it  should  have  been  by 
depositions  upon  interrogatories,  we  notice  also,  as  points  of 
practice,  not  now  to  be  settled,  but  which  have  been  long  since 
determined.  In  a  reference  to  a  master  for  any  purpose,  the 
order  need  not  particularly  empower  him  to  take  testimony,  if 
the  subject-matter  is  only  to  be  ascertained  by  evidence.  And 
in  taking  evidence,  though  the  better  plan  is  to  take  the 
answers  in  writing,  upon  written  interrogatories,  he  may 
examine  witnesses  viva  voce,  the  parties  to  the  suit  being 
present,  personally  or  by  counsel,  not  objecting  to  such  a 
course  (as  was  the  case  in  this  instance),  and  joining  in  the 
examination.  Such  is  the  general  rule  in  chancery.  In 
many,  if  not  in  most,  of  the  states  in  this  Union,  however,  it 
is  the  practice  for  the  master  to  examine  witnesses  viva  voce, 
and  to  take  down  their  answers  in  writing.  But  the  objection 
in  both  its  parts  is  answered  and  overruled  by  the  twenty- 
eighth  rule  of  practice  for  the  courts  of  equity  of  the  United 
States.  That  rule  provides  for  bringing  witnesses  before  the 
master,  for  their  compensation,  for  an  attachment  for  a  con- 
tempt, when  a  witness  refuses  to  appear  upon  subprona ;  and 
the  last  clause  of  it,  allowing  the  examination  of  witnesses 
viva  voce,  when  produced  in  open  court.  We  think  the  same 
reasons  which  allow  it  to  be  done  in  open  court  permit  it  to 
be  done  by  a  master. 

But  it  is  said  the  decree  of  the  district  court  does  not  pro- 
vide for  the  payment  of  costs.     This,  too,  is  a  point  of  practice 


STOHY    V.     I.IVIXCSTON.  2'AO 

Avhicli,  we  rcMimrk.  iilhhI  not  he  a  part  ot"  the  decree  or  jiidi;-- 
iiieiit,  thouiih  it  often  is  so;  as  the  j)aynient  ol"  them  in  most 
cases  depends  ujion  rules,  and  when  miles  do  not  ii})iily,  upon 
the  court's  order,  in  diiecting  the  taxation  of  costs. 

We  now  proceed  to  examine  the  exceptions  taken  Ijy  the 
defendant  to  the  master's  report.  The  first :  "That  chanceiy 
])ractice  has  heeii  abolished  by  a  rule  of  the  district  court  of 
Louisiana,  and  that  sueli  proceeding  is  unknown  to  the  prac- 
tice of  the  court,"  is  not  an  exception  to  the  repoi't,  but  a 
denial  of  the  propriety  of  the  reference  to  the  master  ;  also  of 
the  court's  authority  to  make  such  a  reference  under  the 
mandate,  and  involves  the  assertion  that  the  rule,  if  any  such 
exist,  may  control  the  mandate  and  set  it  aside  as  a  nullity. 
No  such  rule  appears  in  the  record.  If  any  such  exist,  it  cer- 
tainly was  disregarded  in  this  instance  (as  it  sliould  be  in 
every  other  by  the  court),  or  was  not  deemed  a])i)licable  to  a 
case  like  the  one  before  it  We  think  the  occasion,  however, 
a  proper  one  for  this  court  to  remark,  if  any  such  rule  has  been 
made  by  the  district  court  in  Louisiana,  that  it  is  in  violation 
of  those  rules  which  the  supreme  court  of  the  United  States 
has  passed  to  regulate  the  practice  in  the  courts  of  equity  of 
the  United  States.  They  are  as  obligatory  ui)on  the  courts  of 
the  United  States  in  Loni.siana  as  they  are  upon  all  other  United 
States  courts;  and  the  only  modifications  or  additions  which 
can  be  made  in  them  by  the  circuit  or  district  courts  are  such 
as  shall  not  be  inconsistent  with  the  rules  pi'cscribcd.  Where 
the  rules  prescribed  by  the  supreme  court  to  the  circuit  courts 
do  not  ap})ly,  the  [)ractice  of  the  circuit  and  district  courts 
shall  be  regulated  by  the  practice  of  the  high  court  of  chancery 
in  England.  The  parties  to  suits  in  Louisiana  have  a  right  to 
the  benefit  of  them  ;  nor  can  they  be  denied  by  any  rule  or 
order  without  causing  delays,  producing  unnecessary  and 
oppressive  ex|)enses,  and,  in  the  greater  number  of  instances, 
an  entire  denial  of  (>fjuitable  rights. 

The  court  has  said  upon  more  than  one  occasion,  after  ma- 
ture deliberation  upon  able  arguments  of  distinguished  coun- 
sel against  it,  that  the  courts  of  the  United  States  in  Louisiana 
possess  equity  powei's  under  the  constitution  and  laws  of  the 
United  States;  that  if  there  are  any  laws  in  Louisiana  direct- 
ing the  mode  of  )»rocedui'e  in  equity  causes,  they  are  adopted 
by  the  act  of  the  2r)th  of  May,  LS24  (4  Stats,  at  Large.  02),  and 
will  govern  the  practice  in  the  courts  of  the  United  States.     9 


240  EQUITY    PLEADING. 

Pet.,  657.  But  if  there  are  no  laws  regulating  the  practice  in 
equit}^  causes,  we  repeat  what  was  said  at  the  last  term  of  this 
court  in  Ex  parte  Poultney  v.  City  of  La  Fayette,  12  Pet.,  474  : 
"  That  the  rules  of  chancery  practice  in  Louisiana  mean  the 
rules  prescribed  by  this  court  for  the  government  of  courts  of 
the  United  States,  under  the  act  of  congress  of  May  8,  1792, 
chapter  137,  section  2  (4  Stats,  at  Large,  275).  These  rules 
recognize  the  appointment  of  a  master.  The  court  below,  in 
making  this  reference,  acted  under  them  and  the  mandate,  and 
it  could  not  therefore  sustain  the  exception  to  the  master's  re- 
port. On  the  second  exception  we  need  only  remark  that  the 
master  apprehended  rightly  the  decision  and  mandate  of  the 
court.  The  payment  to  Morse  by  the  defendant  was  not  con- 
sidered an  expenditure  on  account  of  the  property  nor  on  ac- 
count of  Livingston.  It  was  intended  to  be  excluded  from 
the  credits  to  which  the  defendant  was  entitled. 

The  third  exception  has  been  already  disposed  of.  It  was 
only  a  permission  to  the  master  to  certify  that  his  report  con- 
tained all  the  evidence  taken  under  the  reference. 

The  fourth  and  seventh  exceptions,  on  account  of  their  gen- 
erality and  indefiniteness,  may  be  considered  in  connection. 
The  first  of  them  is  that  the  master,  in  making  his  estimates 
and  calculations,  has  not  pursued  the  mandate  of  the  court ; 
and  the  seventh  is  that  the  master  erred  in  all  his  charges 
against  the  defendant  and  failed  to  allow  the  defendant  his 
proper  credits.  In  what  particular  the  mandate  has  not  been 
pursued  is  not  stated.  It  is  a  general  objection  to  the  whole 
report,  imputing  to  the  master  a  misconception  of  the  princi- 
ples upon  which  the  account  was  to  be  taken,  and  amounts  to 
this,  that,  if  the  court  shall  see,  upon  the  face  of  the  report 
and  the  master's  proceedings,  error  against  the  defendant,  it 
will  correct  it,  though  no  exception  has  been  filed.  In  this 
view  of  it  the  defendant  shall  be  protected,  if  the  court  shall 
detect  error  in  the  report.  As  to  error  in  charges,  and  a  de- 
nial of  proper  credits  to  the  defendant,  we  remark  that,  with- 
out some  specification  of  erroneous  charge,  and  of  disallowed 
credit,  it  is  impossible  to  determine  what  the  defendant  objects 
to  as  a  charge  or  claims  as  a  credit.  Was  any  credit  refused 
which  was  claimed  except  that  of  the  |1,000  to  Morse?  That 
we  have  said,  was  rightly  refused.  Was  he  not  allowed  all 
other  credits  on  the  general  account  of  expenditures?  Did 
the  defendant,  whilst  the  reference  was  in  progress,  or  after  the 


STORY    \'.     I.1VIN(;ST<)N.  '2  \\ 

report  U])oii  it  was  made,  elaiin  any  credit  hy  the  cxliiljitioii  of" 
any  account  ?  Did  lie  ask  to  introduce  any  evidence  to  the 
master  in  sup{)()rt  of"  any  credit?  Did  he  chiim  any  other 
credit  than  such  as  are  to  be  found  in  the  account,  «;iviiij>;  on 
his  own  oath  a  statement  of  his  expenditures,  and  of  the  rents 
of  tlie  property  f"rom  10th  August,  1822,  to  the  2()tli  January, 
1829?     Nothing  of  the  kind  appears. 

On  the  contrary,  there  is  in  the  report  a  statement  by  the 
master  which  is  conchisive  of  the  fact,  as  it  has  not  been  de- 
nied, that  the  def"en(huit,  though  repeatedly  called  upon,  and 
after  liaving  repeatedly  promised  to  give  an  account,  and  hav- 
ing had  five  weeks  to  furnish  it,  refused  to  give  an}-  account. 

The  parties  were  summoned  to  the  reference,  by  the  master, 
on  the  ()th  of  March.  On  the  8th,  the  defendant  Story  ap- 
peared in  person,  accompanied  b}'  counsel.  Upon  his  sugges- 
tion, however,  that  one  of  his  counsel  was  absent  from  the 
city,  and  that  he  had  been  so  much  occupied  as  not  to  have 
had  leisure  to  complete  his  account,  with  his  request  that  the 
hearing  should  be  postponed,  though  it  was  opposed  by  the 
complainant's  counsel,  the  master  adjourned  the  reference  to 
give  the  defendant  time  to  furnish  his  account,  and  to  sur- 
charge the  account  of  the  expenditures  and  rents  up  to  the  last 
of  .January,  1829.  The  right  to  correct  any^  errors  in  that  ac- 
count was  conceded  to  him  ;  the  account  was  given  in  evi- 
dence subject  to  such  concession.  Two  witnesses  were  then 
sworn  on  the  part  of  the  complainant  without  objection  and 
were  examined  by  both  parties.  The  meeting  was  then  ad- 
journed to  the  next  day,  the  parties  again  attended,  but  the 
witnesses  who  had  been  summoned  not  being  present,  the  de- 
fendant again  suggested  the  propriet}'  of  adjourning  for  a  few 
days,  when  he  should  be  ready  to  present  his  account,  which 
he  had  almost  ready.  It  was  assented  to.  The  meeting  was 
adjourned  to  the  24th  of  March.  On  that  day  the  ])arties  ap- 
peared before  the  master,  a  witness  was  examined  on  the  part 
of  the  complainant,  and  the  defendant  again  declared  he  had 
been  prevented  by  important  business  from  completing  his  ac- 
count, and  he  requested  a  little  more  time  to  make  it  complete.. 
Tlie  complainant's  counsel  consented  to  an  adjournment  to  the  • 
5th  of  April.  On  that  day  the  defendant  again  requested  fur- 
ther time;  the  case  was  continued  to  the  15th  of  April,  and! 
then  defendant  said  he  did  not  intend  to  furnish  any  account ;; 
but  urged  that,  as  the  account  of  expenditures  and  rents  up  to> 
16 


■'242  EQUITY    PLEADING. 

the  last  of  January,  1829,  had  been  received  as  evidence,  it 
must  be  considered  as  conclusive  of  the  expenditures  which 
had  been  made  on  account  of  the  property.  This  was  allowed 
to  be  correct.  We  have  then  the  refusal  of  the  defendant  to 
fuiMiish  an  account,  and  ])roof  that  he  did  not  claim  any  other 
credits  than  those  in  that  account.  With  what  propriety  can  a 
denial  of  credits  be  urged  as  an  exception  to  the  report?  The 
defendant  was  the  only  j)erson  who  could  furnish  an  account 
of  the  credits  to  which  he  supposed  himself  to  be  entitled. 
He  refused  to  do  so.  To  allow  him  to  say  that  there  is  error 
in  the  report,  in  this  respect,  would  permit  him  to  take  advan- 
tage of  his  own  wrong,  and  to  defeat  tlie  complainant's  rights 
by  artifice.  Nor  is  the  account  of  exjienditures  and  receipts 
iip  to  the  last  of  January,  1829,  now  examinable  (except  as  to 
mere  errors  in  computation),  either  as  regards  the  principal  or 
interest ;  the  defendant  being  concluded  by  his  admission  of  it, 
when  he  claimed  the  expenditures  as  a  set-off  against  his  own 
statement  of  the  rents. 

What  has  been  said  of  the  fourth  and  seventh  exceptions 
applies  to  the  fifth,  wdiich  is,  that  a  reasonable  allowance 
should  have  been  made  to  the  defendant  for  the  costs  and  risk 
of  collecting  the  rents.  If  under  the  mandate  any  such  al- 
lowance could  be  made,  the  claim  for  it  should  have  been  pre- 
sented to  the  muster,  su]>poi'ted  by  evidence  of  what  was  the 
eustomaiT  compensation  for  suc^h  services,  if  the  service  is  not 
compensated  by  a  law  of  Louisiana.  A  mere  claim  for  a  rea- 
sonable allowance  cannot  give  a  right  to  any,  and  of  course  is 
no  valid  exception  to  the  repoit.  It  is  the  case  of  a  party  be- 
fore a  master,  who  merely  claims  for  general  expenses,  without 
stating  particulars.  Under  such  a  claim  he  will  be  allowed 
nothing.     Methodist  Ejdsc.  C'h.  v.  Jaques,  3  Johns.  Ch.,  81. 

Six  of  the  exceptions  having  been  disposed  of,  the  seventh 
only  remains  to  lie  considered.  It  is,  '•  that  it  appears  from 
the  master's  repoit  that  the  stores  were  rented  from  November 
to  Noveml)er,  and  he  eri'cd  in  assuming  the  1st  April  as  the 
]»eriod  of  i)ayment  of  annual  rent."  It  was  said  in  argument, 
that  computing  the  ])ayn)ent  of  anmial  rent  in  extinguishment 
of  the  defendant's  debt,  on  the  1st  April,  is  in  effect  to  deprive 
him  of  intei'cst  for  a  ]);iit  of  the  ye;ii\  as  iho  aggregate  of  the 
rent  was  not  in  fact  received  ;  that  it  is  to  allow  interest  n))()n 
rents  and  ])r()fits,  contrary  to  the  mandate  and  established 
decisions.     This  would  certainly  be  so  if  the   rent  had  only 


STORY    V.     LIVIN<i.ST()N.  2-43 

been  received  at  the  end  ol'  tlic  yv.w.  lUit  if  tiie  rcnls  were 
payable  at  intervals  in  the  year,  and  wcie  aetually  so  i-eet-ivcd  ; 
and  if  the  half,  or  any  other  jioition  (')f  the  ascertained  annnal 
rent,  shall  extini^uish  the  interest  ujxin  the  debt  when  it  was 
received  and  rednce  the  princi|>al.  why  should  the  whole  debt 
continue  to  draw  interest?  Surely,  to  allow  this  would  be  to 
vary  the  obligations  of  these  parties  to  t'aeh  other,  dillerently 
from  what  would  be  their  resjiective  ri.uhts  in  any  other  case 
of  a  debt  drawino-  interest,  upon  which  a  ])ayment  has  been 
made,  which  paid  the  interest  and  a  i)art  of  the  |ii-iiieij)al.  Is 
there  any  diilerence  in  the  efVect  of  a  payment,  whether  made 
in  person  by  the  debtor  or  if  it  aiises  from  the  income  of  his 
property  ? 

The  correct  rule  in  general  is,  that  the  creditor  shall  calcu- 
late interest  whenever  a  payment  is  made,  'i'o  this  interest 
the  payment  is  first  to  be  api»lied  ;  and  if  it  exceed  the  interest 
due,  the  balance  is  to  be  apjilied  to  diminish  the  principal. 
If  the  payment  fall  short  of  tlie  interest,  the  balance  of  inter- 
est is  not  to  be  added  to  the  principal  so  as  to  produce  inter- 
est. This  rule  is  equally  applicable  whether  the  debt  be  one 
which  expressly  draws  interest  or  on  which  interest  is  given 
in  the  name  of  damages.  Smith  v.  Shaw,  2  Wash.,  lOT  ;  3 
Cow.,  note  a,  87.  This,  then,  being  the  rule,  if  the  fact  is 
probable  in  this  case  that  the  income  of  the  propei-ty  received 
at  any  time  in  the  course  of  the  year  did  })ay  interest  and  a 
part  of  the  principal,  the  defendant  cainiot  complain  ;  he 
being  the  receiver  of  the  money,  and  i-efusing  to  give  any  ac- 
count of  the  aggregate  or  its  parts  when  received,  if  the  master 
has  taken  a  date  for  the  computation  of  the  aggregate  rent  as 
payment,  which  places  the  parties  upon  an  e(iualily.  Tx^sides, 
the  mandate  does  not  restrict  the  right  of  the  complainant  to 
a  credit  for  the  aggregate  of  tlie  rent  at  the  end  of  the  year. 
It  does  not  allow  interest  upon  the  I'ent,  but  directs  the  ri-nts 
to  be  a[)j)lied  to  the  payment  of  the  sums  incurred  in  building 
and  re{)airing;  secondly,  to  the  interest  on  the  sums  which 
have  been  advanced  on  the  loan,  or  in  tlie  im])rovenient  of  the 
lot;  and  thirdly,  to  the  dischai-ge  of  the  princii)al  of  the  loan. 
The  fair  inference  from  the  silence  of  tbe  mandate,  as  to  the 
time  when  the  rents  are  to  be  civdited,  is,  that  they  are  to  be 
so  when  they  are  received,  if  the  interest  and  ])art  of  the  piin- 
ci})al  are  paid.  This  is  the  general  rule  for  the  api)lication  of 
payments,  and  is  the  rule  of  e(iuity    which   does  substantial 


244  EQUITY    PLEADING. 

justice.  What,  then,  is  the  case  of  the  defendant  in  this  par- 
ticuhir?  He  has  a  debt  drawing  five  per  centum  interest, 
yielding  annuall}'  $1,135.55,  and  is  in  possession  of  the  pro- 
perty of  the  compLninant,  giving  a  rent  annually,  after  deduct- 
ing $700  for  repairs  and  taxes,  of  $8,000.  But,  it  may  be 
asked,  by  what  means  or  evidence  did  the  master  ascertain 
the  amount  of  rents,  and  that  they  were  paid  at  such  times 
and  in  such  amounts  as  to  justify  the  computation  of  the 
annual  aggregate  as  a  payment  before  the  expiration  of  the 
3'ear?  First,  he  must  have  known  that  leases  of  houses  are 
not  made,  either  in  Louisiana  or  elsewhere,  for  the  payment 
of  the  entire  rent  at  the  end  of  the  year ;  next  he  had  an  ac- 
count made  by  the  defendant,  verified  by  his  oath,  showing  that 
foi'  seven  years  the  rents  of  this  property  were  received  by  him, 
principally  in  monthly  payments ;  in  the  year  1828  alto- 
gether so  ;  and  then  at  intervals  of  two,  three  or  four  months 
in  sums  over  $1,700  up  to  $3,000.  The  rents  received  in 
January  and  February,  1828,  exceeded  the  amount  of  interest 
upon  the  principal  debt  or  loan  by  $600.  The  rent  in  that 
account  received  on  the  26tli  January,  1829,  was  $950,  and 
the  account  states  $1,000  as  due  on  the  1st  of  February,  1829. 
The  amount  of  the  annual  rent  the  master  ascertained  from 
the  tenants,  who  were  witnesses  before  him,  not  to  be  less  than 
$8,000.  Let  it  be  remembered  that  the  question  now  is,  not 
whether  the  defendant  shall  pay  interest  upon  rents  and 
profits,  but  the  time  when  he  shall  credit  a  payment  upon  the 
debt  which  discharges  the  interest  and  a  part  of  the  principal. 
His  debt  was  carrying  interest,  and  therefore  his  receiving  the 
rents  of  the  property  at  any  time,  in  a  sum  sufficient  to  pay 
the  interest  and  a  part  of  the  principal,  should  be  applied  at 
the  date  when  it  was  received.  The  defendant  could  not 
claim  an  exemption  from  the  operation  of  this  general  rule,  in 
virtue  of  any  relation  between  himself  and  the  complainant, 
as  trustee,  bailiff,  attorney  or  agent  of  the  latter,  who  was 
always  ready  to  pay  wdien  called  upon,  who  had  not  mingled 
the  rents  with  his  own  money,  and  not  used  it  as  his  own,  or 
that  it  had  been  kept  on  hand  to  abide  the  decree  of  the  court. 
If  he  had  been  in  either  of  these  attitudes,  especially  the  latter, 
his  own  oath,  if  not  controlled  by  other  testimony  and  the  cir- 
cumstances of  the  case,  would  have  entitled  him  to  a  continued 
accumulation  of  interest  upon  the  debt,  without  any  credit  of 
the  rent,  until  the  final  decree  had  directed  a  sum  to  be  paid 


STOKY    V.    LIVINGSTON,  '2\o 

to  the  c'oni{)l;iinant.  Under  the  cireiimstaiu'es  oi"  tliis  ease, 
the  defendant  i-et'using  to  give  any  aeeount,  yet  admitting  that 
he  had  reeeived  the  rents  at  intervals  in  the  year  ;  wiien  we 
consider  such  to  be  the  usual  way  of  renting  liouses,  he  having 
agreed  that  the  certificates  of  the  tenants  should  be  received  as 
evidence  of  the  amount  of  i-ents  respectively  paid  l)y  them,  the 
tenants  having  proved  the  amount  of  tlie  annual  rent  of  the 
premises,  we  conclude  that  the  master  did  right  in  assuming 
an  intermediate  point  in  the  year  for  the  computation  of  the 
annual  amount  of  rent,  in  the  absence  of  all  ])roofs  when  its 
parts  were  paid  ;  and  that  it  was  the  fairest  way  of  carrying 
out  the  substantial  intention  of  the  mandate  of  this  court. 
But  suppose,  as  was  urged  in  argument,  that  the  mandate  had 
directed  an  annual  ap})lication  of  the  rent  of  the  premises  to 
the  payment  of  the  debt  of  the  defendant,  without  specifying 
that  the  interest  was  to  be  calculated  to  a  date  contempor- 
aneous with  the  last  payment  of  the  rent,  and  the  debt  was 
one  carrying  interest  de  die  in  diem.  The  mandate  could  onlj' 
be  executed  according  to  the  general  rule  in  the  case  of  such  a 
debt  by  making  every  receipt  for  rent  in  discharge  first  of  the 
interest,  then  of  the  princi})al.  liaphael  v.  Jjoehm,  11  Ves., 
92.  The  mandate  is  to  be  interpreted  according  to  the  sub- 
ject-matter to  whicli  it  has  been  ai)plicd,  and  not  in  a  manner 
to  cause  injustice. 

This  is  not  like  the  case  of  a  decree  directing  annual  rents, 
with  the  view  of  compounding  interest.  The  (juestion  now 
under  consideration  has  been  ruled  as  it  is  now  decided,  in 
Bennington  1\  Harwood,  1  Turn.  &  Kuss.,  Cli.  Hep.,  477,  a 
case  upon  a  master's  report  of  an  account,  under  a  decree  that 
the  master  sliould  set  an  annual  value  by  way  of  rent  ui)onthe 
premises,  the  mortgagee  being  in  pos.session  ;  the  master  of  the 
rolls  decided  that  a  mortgagee  can  never  receive  more  than  his 
principal  and  interest,  and  says  :  "  Now  if  in  the  early  part  of 
the  year  a  payment  is  made  to  him,  exceeding  the  interest 
which  is  then  due,  and  he  is  nevertheless  allowed  interest  on 
the  whole  of  his  principal  down  to  the  end  of  the  year,  what  is 
the  profit  which  he  derives  IVoiii  his  moi'tgage,  in  the  inteival 
between  the  date  of  that  payment  inid  the  date  of  the  animal 
rent?  It  is  clear  that  a  part  of  his  j)rincipal  lias  been  ic- 
paid  to  him,  and  yet  he  receives  interest  upon  the  whole  of  it; 
in  other  words,  he  gets  more  than  five  percent,  on  the  sum  for 
which  he  is  actually  a  creditor.     Supi)Ose  that    the  sum    jiaid 


24G  EQUITY    PLEADING. 

to  Eadon  on  tlie  2d  February  had  been  equal  to  the  whole  of 
the  £500,  with  the  arrears  of  interest  calculated  to  that  day, 
would  he  have  been  entitled  to  interest  Uj)  to  the  5th  of  July? 
Is  it  i>ossible  that  such  should  be  the  effect  of  a  direction  to 
make  annual  rents?  The  sums  which  a  mortgagee  in  posses- 
sion receives  in  respect  of  the  mortgaged  premises,  at  times 
intermediate  between  the  dates  of  the  annual  rents,  must  be 
applied,  when  they  exceed  interest,  to  the  reduction  of  the 
principal;  and  in  the  present  case  that  course  is  clearly  pre- 
scribed by  the  very  words  of  the  decree."  Now,  what  was  the 
decree  in  Bennington  v.  Harvvood,  1  Turn.  &  Russ.,  477?  It 
was  the  usual  decree  against  a  mortgagee  in  possession,  con- 
taining the  coinnion  directions  that  the  master  should  tax  him 
the  costs  of  suit,  and  so  set  an  annual  value  by  way  of  rent 
U[)on  the  premises,  with  further  directions  that  the  sums 
received  in  February,  1805,  vvere  to  be  applied  forthwith,  first 
to  the  discharge  of  the  then  existing  arrear  of  interest,  and 
next  to  the  diminution  of  tlie  principal.  The  master  made 
the  rest  on  the  5th  July,  instead  of  doing  so  in  February;  and 
the  counsel  contended  in  that  case,  as  counsel  have  done  in 
this,  that  a  direction  for  annual  rests  excludes  all  rests  which 
are  not  annual.  But  that  position  was  not  sustained  by  the 
master  of  tlie  rolls,  on  general  princii)les,  though  he  concludes 
by  saying  in  the  [)resent  case,  "  that  course  is  clearly  pre- 
scribed by  the  words  of  the  decree."  The  defendant  here  is 
substantially  a  mortgagee  in  po.«session,  having  a  debt  due  to 
him,  carrying  interest  de  die  in  diem,  and  must  abide  the 
general  rule  for  the  a{)[)li('ati(>n  of  payments  to  it. 

This,  then,  is  not  a  case  in  which  the  defendant  has  been 
deprived  of  a  day's  interest  by  the  master's  report,  nor  one  in 
wiiich  the  interest  has  been  allowed  upon  rents  and  profits; 
but  a  case  in  which  the  application  of  a  sum  received  by  the 
creditor  is  made  to  prevent  his  whole  debt  from  drawing 
interest  after  a  part  of  it  was  probably  paid.  Of  this  there  is 
a  violent  presum])tion.  The  general  principal  is,  as  it  was 
ruled  in  Breckenridge  v.  Brooks,  2  A.  K.  Marsh,  341,  that  a 
mortgagee  in  possession  is  not  to  pay  interest  upon  rents;  but 
as  the  chief  justice  said  in  that  case  :  "  We  will  not  say  there 
may  not  be  special  circumstances  which  would  justif}'  allow- 
ing interest  upon  rents  received  by  a  mortgagee.  We  say  in 
this,  that  whenever  a  mortgagee  in  possession,  having  a  debt 
due  to  him,  carrying  interest  de  die  in  diem,  shall  collect  an 


STORY    V.    LIVINGSTON.  'Zn  / 

amount  of  rent  which  will  extinguish  the  inteivst  and  a  part 
of  the  principal,  that  he  is  bound  so  to  apply  it."  In  Fen  wick 
V.  INIacey,  1  Dana,  28(),  rents  received  by  a  mortgagee  were 
directed  to  be  applied  as  they  accrued,  to  kee})  down  the 
interest.  In  Reed  v.  Lansdale,  Hard.,  7,  it  was  ruled  that  the 
equitable  rule  in  redeeming,  when  the  mortgagee  is  in  posses- 
sion, is  to  charge  the  profits  of  the  mortgaged  property  against 
the  principal  and  interest. 

Having  thus  disposed  of  the  exceptions  to  the  reiiort,  and 
considered  the  principal  argument  of  counsel  against  its  con- 
firmation, we  remark  that  there  is  nothing  on  the  face  of  the 
report  adverse  from  the  defendant's  rights  which  should  cause 
it  to  be  set  aside.  Even  with  the  comj)Utation  of  the  rents  as 
a  credit  on  the  1st  April,  he  is  still  a  gainer ;  for  the  ditlerence 
between  the  calculation  so  made,  and  what  would  have  been 
the  amount  he  would  have  received  if  the  rents  had  been 
credited  on  the  1st  November,  is  more  than  compensated  by 
the  use  of  large  sums  of  money  received  by  him  as  rent,  after 
the  total  extinguishment  of  his  debt.  The  complainant,  how- 
ever, took  no  exception  to  the  report,  and  it  must  stand  good 
against  her. 

We  notice  in  conclusion  an  objection  to  the  rej^rt  urged  in 
the  defendant's  petition  for  a  re-hearing,  and  in  the  argument 
of  the  case.  It  is,  that  the  decree  of  the  court  below  is  incon- 
clusive as  to  whom  the  property  is  to  be  reconveyed.  This  is 
not  an  objection  which  the  defendant  can  be  permitted  to 
urge.  When  he  shall  obey  the  decree  in  reconveying  and 
surrendering  the  property,  his  responsibility  will  be  at  an  end. 
As  to  the  defendant,  the  decree  of  the  court  is  conclusive 
against  all  persons  who  may  legally  claim  from  him  any  in- 
terest on  the  property  as  devisee  or  heir  of  Edward  Living- 
ston. As  to  those,  the  law  of  Louisiana  fixes  their  I'cspective 
rights,  and  upon  those  rights  this  court  has  not,  nor  does  it 
intend  to  adjudicate  in  this  cause.  The  general  rule  certainly 
is,  that  all  persons  materially  interested  in  a  suit  ought  to  be 
parties  to  it,  either  as  plaintiffs  or  defendants,  that  a  comjdete 
decree  mav  be  made  between  those  parties.  Caldwell  v. 
Taggart,  4  Pet.,  190. 

But  there  are  exce])tions  to  this  rule,  and  one  of  these  i.s, 
where  a  decree  in  relation  to  the  subject-matter  of  litigation 
can  be  made  without  a  person  Avho  has  an  interest  having 
that  interest  in  any  way  concluded  by  the  decree.     Bailey  v. 


248  EQUITY    PLEADING. 

Inglee,  2  Paige,  278.  See,  also,  Joy  r.  Wirtz.,  1  Wash.,  577, 
where  the  rule  is  comprehensively  expressed  in  respect  to 
active  and  passive  parties;  and  where  a  party  is  not  amenable 
to  the  process  of  the  court,  or  where  no  beneficial  purpose  is 
to  be  effected  by  making  him  a  party,  such  interest  must  be  a 
right  in  the  subject  of  controversy,  which  may  be  affected  by 
a  decree  in  the  suit.  Such  is  the  case  as  to  Cora  Barton  in 
this  cause.  The  subject-matter  is  to  obtain  from  the  defend- 
ant money  decreed  to  be  due  to  Edward  Livingston,  and  the 
surrender  and  reconveyance  of  property  forming  a  part  of  the 
real  estate  of  Edward  Livingston.  After  his  death  his  widow, 
as  executrix,  was  made  a  patty  to  the  bill;  and  the  decree  in 
that  suit  cannot  in  any  way  determine  the  rights  of  Cora 
Barton  in  her  father's  estate. 

Besides,  if  there  was  any  force  in  the  objection  it  comes  too 
late;  for  where  a  complainant  omits  to  bring  before  the  court 
j)ersons  who  are  necessarily  parties,  but  the  objection  does  not 
appear  upon  the  face  of  the  bill,  the  proper  mode  to  take  ad- 
vantage of  it  is  by  plea  or  answer.  If  the  objection  appears 
on  the  face  of  the  bill  tlie  defendant  may  demur.  Mitchell  v. 
Lenox,  2  Paige,  280.  The  objection  of  a  misjoinder  of  com- 
plainants should  betaken  either  by  demurrers  or  in  the  answer 
of  the  defendants  ;  it  is  too  late  to  urge  a  formal  objection  of  this 
kind  for  the  first  time  at  the  hearing.  Trustees  of  Water- 
town  V.  Cowen,  4  Paige,  510.  So,  also,  it  was  ruled  in  3  Paige, 
222.  We  might  crowd  this  opinion  with  decisions  to  the  same 
point  from  the  English  and  American  chancery  reports. 
But  further  the  objection  cannot  prevail,  for  it  does  not  show 
that  the  process  of  the  court  could  reach  Cora  Barton.  In 
Mallow  V.  Hinde,  12  Wheat.,  193,  it  was  ruled  that  wherever 
the  case  may  be  completely  decided  as  between  the  litigant 
parties,  an  interest  existing  in  some  other  person  whom  the 
process  of  the  court  cannot  reach,  as  if  such  person  be  a  resi- 
dent of  another  state,  will  not  prevent  a  decree  upon  the  merits. 
And  in  the  same  case  it  was  decided,  where  an  equity  cause, 
ma}'  be  finally  decided  as  between  tiie  parties  litigant  without 
bringing  others  before  the  court,  who  w'ould,  generally  speak- 
ing, be  necessary  })arti6s,  such  parties  may  be  dispensed  with  in 
the  circuit  court,  if  its  process  cannot  reach  them,  as  if  they  are 
citizens  of  another  state.  But  when  the  rights  of  those  not  be- 
fore the  court  are  inseparably  connected  with  the  claim  of  the 
parties  in  the  suit,  the  peculiar  constitution  of  the  circuit  court 


CriAPPEDKI.AINK    V.     DllClI  KN  AUX.  211) 

is  no  ground  for  (Uspciising-  with  such  parties.  12  Wheat., 
194.  In  whateviT  point  of  view,  therefore,  the  ohjection  is 
considered,  whetlier  as  to  the  interest  of  Cora  liarton  in  the 
suit,  the  time  when  the  objection  has  been  made,  or  the  man- 
ner in  wlneii  it  is  made,  in  not  showin<2:  that  the  jtrocess  of 
the  court  could  have  reached  her,  is  of  no  moment  in  this  ease. 
This  court,  in  regard  to  her,  only  directs  her  name  to  be 
inserted  in  the  re-conveyance,  it  having  been  ascertained  by 
the  master  that  she  is  a  forced  heir  of  Edward  Livingston,  and 
tliat  fact  being  admitted  by  the  defendant,  and  the  admission 
of  its  correctness  being  the  foundation  of  his  objection.  The 
decree  of  the  court  below  afiirming  the  master's  report,  and 
directing  a  reconveyance  of  the  property,  is  affirmed. 

CHAPPEDELAINE  v.  DECHENAUX. 
( 4  Cranch ,  306-:^!  G.     1 808. ) 

Error  to  U.  S.  Circuit  Court,  District  of  Coorgia. 

Opinion  by  Marshall,  C.  J. 

Statement  of  Facts. — The  bill  in  this  case  is  brought  to 
set  aside  a  stated  account  whicli  was  signed  by  Dumoussay 
and  Chappedelaine  in  July,  1792,  on  the  suggestion  of  fraud 
on  the  part  of  Dumoussaj' ;  or,  if  it  be  not  set  aside,  to  correct 
its  errors,  and  to  obtain  a  settlement  of  transactions  subse- 
quent to  that  account.  The  stated  account  is  pleaded  in  bar 
■of  so  much  of  the  bill  as  rec|uircs  that  the  subject  should  again 
be  opened  ;  and  the  })articular  errors  assigned,  with  the  excep- 
tion of  one  in  the  addition,  are  denied  in  the  answer. 

That  the  plea  in  bar  must  be  sustained,  except  so  far  as  it 
may  be  in  the  power  of  the  representatives  of  Chappedelaine 
to  show  clearly  tliat  erroi-s  have  been  committed,  is  a  ))roposi- 
tion  about  wliich  no  member  of  the  court  has  doubted  for  an 
instant.  No  practice  could  be  more  dangerous  than  that  of 
opening  accounts  which  the  parties  themselves  have  adjusted, 
on  suggestion  supj>orted  by  doubtful  or  by  only  probable 
testimony.  15ut  if  palpable  errors  be  shown,  errors  which 
camiot  be  misunderstood,  the  settlement  must  so  far  be  con- 
sidei'ed  as  made  upon  absolute  mistake  or  imposition,  and 
ought  not  to  be  obligatory  on  the  injured  party  or  his  re[)re- 
sentatives,  because  such  items  cannot  be  supj)0sed  to  have  re- 
ceived his  assent.  The  whole  labor  of  proof  lies  uj)on  the 
party  oljjc.'cting  to  the  account,  and  errors  which  he  does  not 
plainly    establish    caniK^t    be   suj)j)Ose(l    to    exist.      Uj)on    this 


250  EQUITY    PLEADING. 

principle,  the  ivpoi't  of  the  auditors  in  this  case,  and  the  ex- 
ceptions to  that  report,  so  far  as  respects  the  stated  account^ 
are  to  be  consicU'i'cd.  The  first  exception  rehites  only  to  the 
manner  in  which  the  auditors  understood  the  order  referring 
the  accounts  to  them,  and  need  not  be  considered,  since  the 
sole  iiHjuiry  will  be,  whether  they  have  in  fact  made  any  de- 
duction IVoin  the  stated  account  wdiich  was  not  warranted  by 
the  interlocutory  order,  an  order  made  on  the  principles  which 
this  court  has  already  declared  to  be  correct.  'J'he  second  ex- 
ception refers  to  the  particular  deductions  made  by  the  audi- 
tors. The  first  is,  that  the  item  in  the  stated  account  of  (304Z. 
6s.  5(/.  is  rodueed  to  333^.  Os.  8(/.  The  stated  account  betw'een 
the  ])ai'ties,  marked  in  the  proceedings  as  the  exhibit  A,  con- 
tains this  item,  and  states  it  to  be  one-tiftlT  of  the  expenses  for 
disbursements  on  the  island  of  tSapelo,  which  was  the  joint 
property  of  a  cfunpany  consisting  of  five,  of  which  Dumoussay 
and  Chai)pedelaine  were  partners.  The  items  wliich  composed 
this  general  account  are  all  contained  in  exhibit  F,  stated  by 
Dumoussiiy  on  the  3d  of  May.  J  792,  and  assented  to  by 
Chap])e(lelaine  on  the  23d  of  July,  1792,  when  the  stated 
account  w;is  s'gned.  The  total  of  those  disbursements  is 
4,224^.  3.S.  .SlW..^lnd  the  balance  upon  the  account  is  3,021/. 
12s.  Ur/.,  the  fifth  of  which  is  004/.  G.s.  5c/. 

In  their  ex]il;inatorv  report  the  auditoi's  say  that  they  took 
as  the  basis  of  this  reduction  an  account  settled  by  auditors  in 
a  suit  decided  in  the  circuit  court  of  Georgia,  which  was 
instituted  by  IJoisfeillet,  one  of  the  absent  partners,  against 
Dechenaux,  who  was  executor  both  of  .Dumoussay  and  Chap- 
pedelaine.  TIk^  auditors  in  that  case  were  examined,  and 
they  de[)Ose  tlnit  their  corrections  were  made  on  the  proof  of 
double  cnti'ies,  false  charges,  omissions  acknowledged  l)y  the 
executor  of  Dumoussay,  and  charges  not  [)roper  to  be  made 
against  Boisfcillct.  'I'his  testimony  would  of  itself  be  sufficient 
to  convince  the  court  that  injustice  was  done  in  the  settlement 
of  July,  1792,  l)ut  would  not  show  explicitly  the  amount  of 
that  injustice,  and  enable  them  to  say  wdiat  deductions  from 
that  settlement  ought  to  be  allowed,  because,  as  was  well 
observed  by  the  counsel  for  Dechenaux,  items  might  be  prop- 
erly chargeable  to  C!happedelaine  of  which  Boisfeillet  ought 
not  to  bear  ;i  pnrt.  The  court,  therefore,  sought,  in  the  docu- 
ments connected  with  the  report,  for  that  more  explicit  in- 
formation.     Upon  looking  into  the  exhibit  F,  there  are,  upon 


CHAPPIiDKLAINE    V.    DECliENAlX.  251 

the  face  of  the  paper,  obvious  errors,  whicli  (leiiiuiisti'ate  the 
incorrectness  of  that  statement,  and  the  excessive  inattention 
of  Chappedelaine.  Tlie  first  item  on  'the  debit  side  of  tliis 
exhibit  is  the  sum  of  3,571/.  3s.  8^d.  disbursed  for  Sajjclo. 
The  funds  for  tliis  disbursement  were  in  part  in  the  hands  of 
Diimoussay,  as  the  remnant  of  advances  previously  made  by 
the  partners.  To  this  remnant  he  states  himself  to  have 
added  2,368/.  12.s.  OJd  from  his  private  funds.  On  this 
advance  made  by  himself  in  Georgia,  he  charges  the  com|)any 
fifteen  per  cent.,  amounting  to  354/.,  on  account  of  the  dillV'r- 
ence  of  exchange  between  money  in  France  and  in  Georgia, 
or,  as  he  expresses  it,  for  exchange,  freight  and  insurance. 
This  charge  has  been  rejected  in  the  accounts  of  all  the  part- 
ners, for  many  obvious  reasons.  It  is  sufficient  to  observe  that 
as  this  money  was  advanced  in  Georgia  by  Dumoussay,  and 
repaid  to  him  in  Georgia  by  the  partners,  there  was  as  much 
reason  for  making  these  charges  on  the  repayment  as  on  the 
original  advance  ;  and  with  respect  to  Cha{)pedelaine,  it  is 
still  more  inadmissible,  because  he  had  previously  advanced 
his  portion  of  this  money  to  Dumoussay,  and  had  allowed  him 
fifteen  per  cent,  for  these  charges,  in  a  deduction  from  that 
advance,  so  that  this  charge,  with  respect  to  Chappedelaine,  is 
double. 

The  third  item  in  this  exhibit  is  a  charge  of  200/.  as  one 
3' ear's  interest  on  2,368/.  12s.  O^d.  This  is  more  than  double 
the  real  amount  of  interest.  There  is  also  in  the  credit  side  of 
the  account  an  error  of  100/.  in  the  addition.  The  errors 
apparent  on  the  face  of  the  exhibit  F  amount  to  611/.,  and 
these  errors  are  of  such  a  descri))tion  as  strongly  to  characterize 
the  stated  account  of  July,  1702.  In  the  account  stated  by 
the  auditors,  there  are  omissions  of  moneys  received  by  Du- 
moussay, and  admitted  to  be  chargeable  to  him  in  this  account 
with  the  company,  amounting  to  180/.  10.?:  10c/. 

The  account  containing  these  incontestable  errors  was  sub- 
mitted to  auditors  and  still  further  reduced  by  them.  Several 
of  the  small  errors  which  they  have  detected  are  perceived, 
but  the  whole  cannot  be  traced  by  this  court  without  engaging 
in  the  laborious  task  of  auditors,  which  is  incompatible  with 
their  duties.  To  that  account  the  executor  of  l)umoussay, 
who  was  also  the  executor  of  Chappedelaine,  was  a  party,  and 
had  a  right,  with  respect  to  Boi.sfeillet,  to  rely  upon  the  stated 
account  of  July,  1702,  signed  by  Chappedelaine,  because  Chaj)- 


252  EQUITY    PLEADING. 

pedelaine  was  the  attorney  in  fact  of  Boisfeillet,  and  because 
Boisfeillet  had  sanctioned  that  settlement,  and  had  assumed 
the  payment  of  liis  part.  Yet  in  that  case  the  deductions 
from  that  account  were  made  which  the  auditors  in  this  case 
have  taken  as  the  basis  of  their  settlement,  and  those  deduc- 
tions were  made  in  consequence  .of  double  entries,  false 
charges,  and  charges  not  admissible  against  Boisfeillet.  The 
great  difficulty  in  admitting  such  an  account,  under  such  cir- 
cumstances, consists  in  the  uncertainty  of  the  amount  of  those 
charges  which  were  rejected  as  being  inapplicable  to  Boisfeillet. 
This  difficulty  is  removed,  in  a  great  measure,  by  inspecting 
the  report  in  the  present  case.  In  that  report  the  auditors 
take  up  the  items  which  were  rejected  on  this  principle,  and 
charge  them  to  Chappedelaine  ;  so  that,  in  truth,  the  altera- 
tions made  in  this  item  are  all  founded  on  eri'ors  which  the 
auditors  have  corrected. 

The  second  item  of  this  exception  is  that  the  auditors 
reduced  the  sum  of  336/.  16.s.  8d.,  admitted  in  the  stated 
account  as  being  one-fourth  of  the  purchase  and  expense  of 
Jekyll,  to  311/.  9s.  Gd.,  making  a  difference  of  251.  7s.  2d. 
This  item  in  the  exhibit  A,  which  is  the  stated  account,  is  the 
result  of  exhibit  G,  which  is  the  account  of  Jekyll,  as  settled 
between  Dumoussay  and  Chappedelaine.  There  is  an  obvious 
error  of  4/.  Ids.  lOd.  in  the  division  of  3/.  lO.s.  in  the  hire  of 
negroes,  and  the  residue  of  the  sum  deducted  is  on  account  of 
the  same  charges  on  the  moneys  advanced  for  Jekyll,  which 
were  made  on  the  moneys  advanced  for  Sapelo,  and  which  are 
rejected  for  the  same  reasons  which  were  assigned  for  their 
rejection  in  that  item  of  the  account. 

'The  auditors  also  reduced  the  sum  of  990/.  3s.  Id.,  assumed 
by  Chappedelaine  for  Boisfeillet,  to  the  sum  of  410/.,  making 
a  difference  of  580/.  3.s.  Id.  Nothing  can  be  more  obvious 
than  the  propriety  of  this  reduction.  Dumou.ssay  charges 
Cliappedelaine  with  the  debt  of  Boisfeillet,  amounting,  as  he 
says,  to  990/.  3.s.  Id.,  which  Chappedelaine  assumes  as  the 
attorney  of  Boisfeillet.  In  a  suit  to  which  the  executor  of 
Dumoussay  is  a  party,  this  debt  a})[)ears  to  have  been  only 
410/.  No  man  can  hesitate  to  admit  that  Chappedelaine 
must  have  credit  with  Dumoussay  for  the  difference  between 
the  sum  alleged  to  be  due  and  the  sum  actually  due  from 
Boisfeillet.  The  auditors  also  struck  out  of  the  stated  account 
the  sum  of  554/.  96'.  4c/.,  assumed  by  Chappedelaine  for  one  of 


CHAPPKDELAIXK    V.    DRCIIEN'AUX.  253 

the  absent  jiartnei's,  that  hi'in^  consicU'rcd  hy  mistake  as  the 
share  of  that  absent  partner  in  the  expenses  of  8a|)chj. 
The  sum  aetually  due  by  that  partner  was  afterwards  paid  by 
himself  to  the  executor  of  Dumoussay.  The  court  is  satisfied, 
from  the  evidence,  that  this  payment  was  made  to  Declienaux 
as  the  executor  of  Dumoussay.  'J'he  assumpsit  of  Cha])pede- 
laine  was  essentially  as  security  for  the  absent  partner,  who 
still  remained  a  debtor,  and  when  the  j)rincipal  did  himself 
pay  what  he  owed  to  the  original  creditor,  the  assumpsit  of 
('haj)]U'delaine  was  of  no  further  obligation.  Although  this 
was  not  an  error  in  the  account  when  settled,  exce])t  so  far  as 
this  charge  exceeded  the  sum  with  which  the  absent  partner 
was  really  chargeable,  yet  it  becomes  an  item  which  can  no 
longer  be  retained  as  a  charge  against  Cha})pedelaine,  and  in 
reforming  their  accounts  it  nuist  be  excluded  from  them. 
There  is  also  added  to  the  credits  of  Chappedelaine  the  sum  of 
26^.  18.S.,  which  the  auditors  state  to  be  the  difference  between 
the  amount  of  a  receipt  given  by  Dumous.say  and  the  sum 
actually  debited  to  him  in  the  accounts  between  the  parties. 
These  several  errors  make  up  the  sum  of  1,457/.  S^'.  Ad.,  from 
which  is  to  be  deducted  the  sum  of  6(57/.  lO.s.  lf(i.,  admitted 
on  the  stated  account  to  be  due  from  Chappedelaine  to  Du- 
moussay. The  balance  standing  to  the  credit  of  Chappede- 
laine would  be.  on  the  30th  of  April,  1792,  789/.  18s.  2|f/. 

The  auditors  state  this  balance  at  1,346/.  lO.s.  Id.  But  from 
this  balance,  reported  by  the  auditors,  is  to  be  taken  the  sum  of 
305/.  13s.,  allowed  by  Chappedelaine  on  the  repayment  in 
Georgia  of  money  lent  by  him  to  Dumoussay  in  France.  This 
sum  has  been  disallowed  by  the  auditors,  but  was  allowed  by 
the  circuit  court,  and  is  allowed  by  this  court.  This  would  re- 
duce the  report  of  the  auditors  to  1,030/.  17s.  7d.,  exceeding 
the  balance  which  is  here  supposed  by  the  sum  of  240/.  19s. 
4|c/.  The  greatest  part  of  this  excess  is  produced  by  one-third 
of  merchandise  sold  and  not  entered  in  the  account,  and  by  a 
credit  for  continuing  interest  up  to  the  30th  of  April,  1792,  on 
Chappedelaine's  money  in  the  hands  of  Dumoussay,  which 
credits  had  been  omitted  in  the  stated  account  without  any 
api)arent  reason,  and  must  therefore  have  been  among  the  nu- 
merous inaccuracies  of  that  account.  The  residue  of  this  ex- 
cess is  said  by  the  auditors  to  be  produced  by  numerous  minute 
errors  detected  by  a  laborious  investigation  of  all  the  accounts 
between  the  parties.     This  court  cannot  ]»ursue  them  in  that 


254  EQUITY    PLEADING. 

investigation.  Bnt  in  a  case  so  replete  with  errors,  which  mark 
excessive  negligence  on  the  one  side,  and  which  can  scarcely 
be  ascribed  to  mistake  on  the  other,  the  court  is  of  opinion  that 
the  report  of  the  auditors  stating  that  these  corrections  were 
made  on  the  inspection  of  the  vouchers  and  entries  which  were 
laid  before  them,  ought  to  be  received,  unless  the  person  tak- 
ing the  exception  had  himself  required  the  testimony  on  any 
particular  point  to  which  he  objected  to  be  submitted  to  the 
court,  or  had  required  a  special  statement  from  the  auditors, 
exhibiting  the  reasons  for  their  opinion  on  the  particular 
point. 

The  balance  due  to  Chappedelaine  on  the  30th  of  April, 
1792,  is  so  much  of  the  loan  made  by  him  to  Dumoussay,  in 
France,  which  remains  un[)aid.  By  the  contract  between  the 
parties,  that  loan  was  to  carry  an  interest  of  six  per  cent,  per 
annum  until  i)aid.  The  court,  therefore,  cannot  consider  it  as 
a  claim  on  an  unsettled  account,  or  as  carrying  interest  at  the 
rate  established  in  Georgia.  It  is  still  governed  by  the  law  of 
the  contract,  and  must  carry  interest  at  the  rate  of  six  per 
cent,  per  annum.  To  the  report,  so  far  as  it  respects  the  ac- 
counts subsequent  to  the  30th  of  April,  1792,  a  general  excep- 
tion is  taken,  which  is  sufficiently  repelled  by  the  answer  of 
the  auditors.  They  say,  if,  in  the  opinion  of  the  defendant 
below,  the  auditors  admitted  any  charge  against  Dumoussay, 
which  was  not  sufficiently  supported  by  testimony,  he  ought  to 
have  obtained  a  special  statement  from  the  auditors,  or  have 
made  a  special  exception  whicli  would  bring  the  testimony  on 
the  pat  ticular  point  befitre  the  court.  The  only  objection  which 
the  court  can  notice  is  the  allegation  in  the  exception  that  the 
auditors  have  j)roceeded  on  accounts  rendered  by  Dechenaux, 
without  allowing  him  a  credit  which  he  claimed  in  those  ac- 
counts. That  credit  is  the  balance  appearing  to  be  due  to 
Dumoussay  by  the  stated  account  of  July,  1792.  But  that 
balance  was  entirely  changed.  The  item  was  fully  disproved 
by  the  testimony  laid  before  the  auditors.  Dechenaux  did  not 
then  withdi-aw  liis  account,  and  require  the  plaintiff  below  to 
su})i)()rt  his  claims  by  other  vouchers.  It  was  clearly  in  the 
powa^'  of  the  {)hiintiff"  to  have  done  this,  for  he  might  have 
forced  Dechenau.x  to  produce  the  entries  and  vouchers  from 
which  he  had  made  out  the  account  exhibited  by  himself.  By 
leaving  tliis  account  with  the  auditors  without  objection,  he 
acquiesced  in  their  considering  as  correct  the  items  it  admitted. 


MCMICKEX    V.    PKPvIX.  255 

This  bill  was  brought  to  correct  the  stated  nccduiit  of  .hily, 
1792,  and  to  settle  the  accounts  between  the  jtartics  sul)sequent 
to  that  period.  The  delendant  exhibits  the  nccounts  subse- 
quent to  that  period,  but  claims  to  set  against  tlu'iii  the  Iml- 
anoe  due  to  his  testator  under  the  settlement  of  IT'.fJ.  On 
those  subsequent  accounts  that  balance  has  no  iiilhn'ncc.  Hy 
introducing  it  into  an  account  he  was  compellnhlr  to  render, 
he  cannot  ilestroy  the  eflect  of  that  account.  Had  lu!  intended 
to  rely  on  this  circumstance,  he  ought  to  have  made  the  ])oint 
before  the  auditors,  and  thus  have  enabled  the  plaintill'to  take 
other  measures  to  substantiate  his  claim.  'l\\v  auditors  say 
they  "  admitted  the  account  })resented  by  the  deU'ndant ;  "  but 
this  must  be  understood  with  the  exception  of  the  balance 
which  he  claimed  under  the  settlement  of  July,  171)2.  It  does 
not  appear  from  their  re])ort  that  the  claims  of  the  ])laintiff 
below  rested  on  that  account  so  far  as  it  went ;  but  it  is  j)rol)- 
able  that  further  research  was  deemed  unnecessary.  The 
court  cannot  say  that  in  this  the  auditors  erred. 

The  decree  of  the  circuit  court  is  affirmed,  so  far  as  it  accords 
with  this  opinion,  and  is  reversed  as  to  the  residue. 

McMlCKEX  V.  PERIN. 
( 1 8  Howard,  507-5 1 1 .     1855. ) 

Appeal  from  U.  S.  Circuit  Court,  Eastern  District  of 
Louisiana. 

Opinion  by  Mr.  Justice  ('.\mpbell. 

The  appellant  further  objects  that  his  debt  was  not  accu- 
rately ascertained  by  the  master  uj)on  the  decree  of  reference. 
In  8tory  v.  Livingston,  13  Pet.,  359,  this  court  decided  that 
no  objections  to  a  master's  report  can  be  made  which  were  not 
taken  before  the  master;  the  ol)ject  being  to  save  time,  and  to 
give  him  an  opportunity  to  coi-rect  his  errors  and  reconsider 
his  opinion.  And,  in  Heyn  v.  Jleyn,.  Jacob.,  -li),  it  was 
decided  that,  after  a  decree  pro  confesso,  the  defend.-nit  is  not  at 
libert}'  to  go  before  the  master  without  a  special  order,  but  the 
accounts  are  to  be  taken  ex  parte.  This  court  will  not  revicnv 
a  master's  report  upon  objections  taken  here  for  the  first  time. 
Our  conclusion  is,  there  is  no  error  in  the  finnl  decree  ren- 
dered in  the  circuit  court. 

At  a  subsequent  term,  the  ap{)ellant  filed  a  petition  in  the 
circuit  court,  alleging  that  he  had  been  deceived  1)v  the 
appellee  in  reference  to  the  prosecution   of  tlie   bill,  and   had 


256  EQUITY    PLEADING. 

consequently  failed  to  make  any  appearance  or  answer,  and 
that  he  had  a  meritorious  defense.  He  prayed  the  court  to 
set  aside  the  decree,  and  to  allow  him  to  file  an  answer  to  the 
bill.  This  petition  was  dismissed.  We  concur  in  the  judg- 
ment of  the  circuit  court  as  to  the  propriety  of  this  course. 
This  court,  in  Brockett  v.  Brockett,  2  How.,  238,  determined 
that  an  appeal  would  not  lie  from  the  refusal  of  a  court  to 
open  a  former  decree,  though  the  petition  in  that  case  was 
filed  during  the  term  at  which  the  decree  was  entered.  In 
Cameron  v.  McRoberts,  3  Wheat.,  591,  it  decided  that  the" 
circuit  courts  have  no  power  to  set  aside  their  decrees  in 
equity,  on  motion,  after  the  term  at  which  they  were  ren- 
dered. These  decisions  are  conclusive  of  the  questions  raised 
upon  the  order  dismissing  the  petition.  The  decrees  of  the 
circuit  court  are  affirmed,  with  costs. 

[Note. — Only  so  much  of  this  case  is  reported  as  relates  to  Equity  Pleading 
and  Practice.] 

GAINES  V.  NEW  ORLEANS. 
(Circuit  Court  for  Louisiana  :  1  Woods,  104-112.     1871. ) 

Opinion  by  Bradley,  J. 

Statement  of  Facts. — In  these  cases  the  defendants  except 
to  the  master's  report.  It  does  not  appear,  by  the  report  of  the 
master's  minutes,  that  the  exceptions  were  taken  before  him. 

The  rule  of  practice  is  that  no  exceptions  will  be  heard  by 
the  court  which  have  not  been  made  before  the  master,  so  as 
to  give  him  an  opportunity  of  considering  the  same  and  cor- 
recting his  report.  But  as  counsel  on  both  sides  have  evi- 
dently acted  under  a  misapprehension  of  the  rule,  I  will  not 
overrule  the  exceptions  on  that  ground,  especially  as  some  of 
them  are  of  great  importance  to  the  rights  of  the  parties. 
But  it  is  desirable  that  the  rule  should  be  observed,  and  here- 
after, in  the  absence  of  very  special  circumstances,  the  court 
will  feel  bound  to  enforce  it.  It  was  declared  by  the  supreme 
court  of  the  United  States  in  McMicken  v.  Perin,  18  How., 
507,  and  in  other  cases  there  referred  to. 

The  principal  exceptions  are  :  1.  That  the  defendants  did 
not  realize  the  rents  and  profits  which  the  master  has  charged 
them  with.  As  this  is  a  matter  of  fact  arising  from  the  evi- 
dence, the  court  will  not  undertake  to  re-examine  and  re-try 
the  whole  case ;  but  will  allow  the  report  to  stand,  unless 


W(Mil)    \'.     MANN.  257 

some  particular  matter  is  pointed  out  in  wliicli  tlu'  master  has 
committeil  an  error,  or  unless  it  be  shown  that  he  has  adojited 
some  erroneous  principle  on  which  his  account  or  calculation 
is  based. 

[NoTK. — Only  so  iinicli  of  tliis  c:ise  is  reported  as  relates  to   Kquity  I'leading 
and  Practice.] 

WOOD  V.  MANN. 

(Circuit  Court  for  Massachusetts:  2  Sunnier,  31  (',-330.     183(5.) 

Petition  to  take  additional  testimony  after  publication. 
The  facts  appear  in  the  opinion. 

Opinion  by  Stoky,  J. 

Of  the  materiality  of  the  testimony  now  proposed  to  be 
taken  no  doubt  can  be  entertained.  It  goes  to  establish  many 
of  the  leading  points  of  fact  in  controversy  between  the 
parties;  and  if  not  vital  in  the  cause,  it  is  on  all  sides 
admitted  to  have  a  most  stringent  force  and  pressure.  It  is 
under  circumstances  so  rare  and  so  novel  that  this  court  is 
called  upon  to  decide  one«of  the  most  important  and  delicate 
questions  of  practice;  than  which,  indeed,  few,  if  any,  can  be 
presented  better  deserving  of  deliberate  consideration  and 
striking  deeper  into  the  foundations  of  equity  jurisprudence. 
It  is  upon  this  account  that  I  have  taken  time  to  examine  the 
whole  subject  with  all  the  aids  which  could  be  derived  IVom 
the  labors  of  counsel  and  my  own  auxiliary  researches,  feel- 
ing, as  I  do,  an  anxious  desire  to  perform  on  the  present  occa- 
sion exactly  what,  upon  the  most  careful  survey  of  principles 
and  authorities,  it  is  my  duty  judicially  to  perforin. 

The  general  rule  in  equity  proceedings  is,  that,  after  publi- 
cation of  the  testimony,  no  new   witnesses  can    be  examined 
and  no  new  evidence  can  be  taken.     This  rule  is  at   least  a^ 
old  as  the  time  of  Lord   Bacon,  among  whose  ordinances  in- 
chancery  we  find  the  following:  "  No   witnesses  shall  be  ex- 
amined   after   publication,   except    by  consent  or   by   special 
order   ad   informandum  conscientiam  judicis;    and   then  to   be^ 
brought  close  sealed  up  to  the  court  to  peruse  or  publish  as. 
the  court  shall  think  good."     The  true  exposition  of  the  latter 
qualification  of  this   rule   would  seem   to   be    that    the    new 
evidence  to  inform  the  conscience  of  the  judge  should   not  be- 
taken but  upon  or  after  the  hearing,  when  the  judge  himself 
entertains  a  doubt,  or  when  some  additional  fact  or  inquiry  is 
indispensable  to  enable  him   to  make  a  satisfactory  decree. 
17 


258  EQUITY    PLEADING. 

So  was  the  doctrine  held  in  Newland  v.  Hoiieinan,  2  Ch.  Cas., 
74;  and  it  is  strongly  fortified  by  what  fell  from  Lord  Man- 
ners, in  Savage  v.  Carroll,  2  Ball  &  Beatt.,  444,  and  by  the 
master  of  the  rolls  in  Parken  v.  Whitby,  1  Turn.  &  llass., 
306.  Except  for  such  purposes  and  under  some  special  order 
of  the  court  itself  at  or  after  the  hearing,  no  such  testimony, 
taken  after  publication,  is  now  deemed  admissible,  at  least 
unless  under  extraordinary  circumstances,  under  the  rules. 
The  practice  of  taking  such  testimony  before  the  hearing,  and 
keeping  it  sealed  up  to  be  used  by  the  court  at  the  heai'ing, 
if  it  should  be  deemed  meet,  is  said  by  the  text-writers  to 
have  fallen  into  disuse,  and  not  to  have  been  in  practice  for 
more  than  a  century.  Hinde's  Practice,  316  ;  Beames'  Orders 
in  Chanc,  33,  notes  117  and  118;  Dalby  v.  Mace,  Toth ill, 
191  ;  Carey's  R.,  83  ;  Wyatt,  Tract.  Register,  354,  355  ; 
Willan  V.  Willan,  19  Ves.,  592. 

There  is  an  old  case  reported  in  Carey's  Rep.,  83,  which 
sViows  what  the  old  practice  was ;  and  I  quote  it  in  the  very 
words  of  the  report.  "  Upon  affidavit  made  by  the  plaintiff, 
that  since  publication  granted  he  had  divers  witnesses  (setting 
down  their  names)  come  to  his  knowledge  ;  therefore  oi'dered 
he  may  examine  them  before  the  examiner  ad  injorwaiiduni 
couscientiantjndicis.'^  No  other  circumstances  are  stated  ;  and 
therefore  it  is  impossible  to  know  what  the  facts  were,  or 
whether  the  other  testimony  taken  had  been  actually  seen  by 
the  plaintiff. 

The  general  rule  is  founded  in  the  obvious  public  })olicy  of 
suppressing  perjury,  and  the  fabrication  of  evidence,  to  meet 
the  exigencies  of  the  cause,  after  the  full  bearing  and  weight 
of  the  testimony  are  understood  by  all  the  parties.  If,  under 
such  circumstiinces,  the  parties  were  permitted  to  supply  the 
actual  deficiencies  of  the  evidence  from  time  to  time,  as  they 
should  be  found  out,  there  would  be  strong  temptations  to 
corrupt  and  insidious  practices  to  obtain  new  evidence;  and 
there  would  be  a  premium  held  out  for  delays  and  omissions 
of  diligence  in  taking  the  evidence,  until  the  whole  strengtli 
of  the  adversary's  cause  was  disclosed.  Courts  of  equity,  from 
considerations  of  this  sort,  have  always  been  disposed  to  up- 
hold the  rule  with  a  firm  and  rigid  exactness. 

.Lord  Eldon,  in  Whitelocke  v.  Baker,  13  Ves.,  511,  said: 
"This  court  will  not  enlarge  publication,  without  a  very 
special  case  made.     The   party's  want  of  knowledge   of  the 


WOOD    V.    MANX.  259 

rules  of  ])roceeilin^',  an<l  want  ol'  attcntidu  in  liis  solicitor,  are 
not  sufficient.  The  rules  of  justice  are  founded  in  great  j;en- 
eral  |)rincii)les,  not  to  be  broken  down  by  such  circninstances." 
Lord  Macclesfield,  in  Cann  v.  C'aini,  1  P.  Will.,  727,  laid 
di)wn  the  tloctrine  in  nioie  enipliatic  terms.  "  The  pifcedent 
methods  (said  he)  of  this  couit  were  that,  after  iiublication  is 
passed,  and  tlie  pui'port  of  tlu'  examinations  known  to  the 
parties,  neither  side  is  allowed,  though  they  come  recent,  to 
enter  into  part  examination  of  the  matters  in  (piestinn,  since 
otherwise  there  would  be  no  end  of  things,  and  such  a  pi'o- 
ceeding-  would  tend  to  perjuiw,  as  well  as  vexation." 

Excef)tions,  however,  ha\(^  been  admitted  to  the  general 
rule;  and  to  the.'^eour  attention  will  now  be  directed,  in  order 
to  ascertain  how  far  they  are  aj)}»licable  to  the  cii-cunistances 
of  the  case  before  the  court.  Tiie  exceptions  will  be  found  for 
the  most  part  to  turn  u|ion  grounds  entirely  consistent  with 
the  policy  of  the  <ienei'al  rule,  and  in  no  mannei-  trenching 
uj)on  its  justice  or  inconvenience.  At  the  same  time  they  ex- 
hibit in  a  marked  manner  the  I'eluctance  of  the  court  to  bi'eak 
in  u{)0n  the  general  uniformity  of  the  })ractice,  except  under 
very  sj^ecial  circumstances. 

It  will  not  be  nece.ssaiw  to  go  over  the  authorities  at  large; 
for  they  do  not  present  any  geneial  diversity  of  judgment, 
requiring  comment  or  ci'iticism.  They  rather  arrange  tliem- 
selves  into  classes,  in  each  of  which  every  successive  judge 
has  sliown  a  solicitude  to  keep  within  the  limits  |)rescribed  by 
his  predecessors. 

The  first  class  of  exceptions  is  that  of  the  examination  of 
witnesses  to  the  mere  credit  of  other  witnesses  whose  deposi- 
tions have  been  alieady  taken  in  the  cause.  This  is  the  ordi- 
narv  ))ractice,  and  is  done  upon  articles  or  objections  Hied. 
Beanies'  Ord.  in  Ch..  p.  32,  ^  72  :  id.,  p.  187,  §  SO.  Hut  then, 
in  these  ca.ses,  the  geneial  interi'ogatory  oidy,  whellui'  he  (the 
proposed  witness)  would  believe  the  other  on  his  (  atli  (which 
is  the  usual  form  of  putting  the  interrogatory  in  I"j)gland,  and 
differs  widely  from  that  in  which  it  is  usually  ))Ut  in  America 
— see  1  Starkie  on  Ev.,  182,  2d  ed..  London,  18^)0  ;  Watmoi'e  r. 
Dickin.son,  2  Yes.  &  B.,  207.  2()8  ;  Carlos  i'.  Brook,  10  Yes..  50), 
is  that  upon'.which  the  new  examination  is  allowed,  unless 
under  very  special  circumstances.  And  there  is  this  close  lim- 
itation upon  such  special  circumstances,  that  the  interrogatory 
shall  not  be  to  any  facts  jait  in   issue  in   the  suit,  but  only  to 


260  EQUITY    PLEADING. 

such  facts  as  merely  touch  the  credit  of  the  witness.  This 
doctrine  was  expounded  very  fully  by  Lord  Eldon  in  Purcell 
V.  McNamara,  8  Ves.,  324,  326,  and  Wood  v.  Hammerton,  9 
Ves.,  145  ;  Cai'los  v.  Brook,  10  A^es.,  50,  and  White  v.  Fussell> 
1  Ves.  &  Beam.,  153  :  and  it  was  recognized  and  acted  upon 
by  Mr.  Chancellor  Kent  in  Troup  v.  Sherwood,  3  John.  Ch., 
558,  where  he  critically  examined  the  leading  authorities. 
But,  what  is  most  important  in  its  bearing  on  the  present  case, 
is  tlie  absolute  I'efusal  of  the  court  in  these  cases  to  allow  the 
witness  to  be  contradicted  as  to  any  fact  which  he  had  sworn, 
touching  the  merits  of  the  matters  in  issue  between  the  par- 
ties. "  If  (said  Lord  Eldon  in  Purcell  v.  McNamara),  for  in- 
stance, the  fact  is  material  to  the  merits  of  the  case,  and  the 
witness  has  sworn  to  it,  tliere  is  great  danger  of  bringing  other 
witnesses,  under  color  of  discrediting  that  witness,  to  prove  or 
disprove  such  fact."  See  Gilb.  For.  Rom.,  147 ;  Smith  v. 
Turner,  3  P.  Will.,  413. 

Another  class  of  exceptions  is  where  the  application  is  made 
to  enlarge  the  time  for  publication,  or  more  frequently  to  en- 
large the  time  for  taking  the  testimony  after  publication  has 
been,  in  form,  though  not  in  fact,  made,  according  to  the 
rules  of  the  court.  To  such  a|)plications,  whenever  they  will 
cau.se  any  dehiy  in  the  cause,  the  court  does  not  listen  without 
some  good  cause  shown  upon  affidavit ;  such  as  surprise,  acci- 
dent, or  other  circumstances  which  repel  anv  imputation  of 
laches.  See  Gilb.  For.  Rom.,  124  ;"  1  Harris.  Ch.  Pr.  by  New- 
land,  ch.  43,  pp.  285,  287  ;  see,  also,  Watmore  v.  Dickinson,  2 
Ves.  &  B.,  267,  268  ;  Cutler  v.  Cremer,  6  Madd.,  254.  And  in 
all  cases  of  this  sort  before  the  application  is  allowed,  the  party 
and  iiis  clerk  in  court,  and  solicitor  are  required  to  make  oath 
"that  they  have  neither  seen,  heard,  read,  nor  been  informed 
of  any  of  the  contents  of  the  deposition  taken  in  that  cause; 
nor  will  they  see,  hear,  read  or  be  informed  of  the  same  till 
publication  is  dulv  passed  in  the  cause."  Gilb.  For.  Rom., 
146  ;  see,  also.  Anon.,  1  Vern.,  253  ;  llinde's  Prac,  384,  385. 
And  this  affidavit  is  so  important,  that  the  court  will  never 
disi)ense  with  it  except  in  a  case  of  fraud  practiced  by  the 
other  party  to  evade  the  rule ;  as  was  the  case  in  a  memorable 
instance  in  Lord  Somers'  time,  stated  by  Ch.  Baron  Gilbert 
(Gilb.  For.  Rom.,  146). 

Lord  Eldon,  in  commenting  on  the  affidavit,  and  the  strict- 
ness of  the  rule  requiring  it,  said  :  "  That  it  is  founded  upon 


WOOD    V.     MANN.  2()1 

this:  that  no  more  (Inngorous  mode  of  proceeding  can  take  jtlace 
than  })erniitting  parties  to  make  ont  evidence  by  piecemeal, 
and  to  make  u[)  the  deficiency  of  original  dejio.sitions  by  other 
evidence.''  Whitclocke  v.  Baker,  13  Ves.  R.,  oil!.  In  the 
same  case,  where  a  motion  was  made,  the  effect  of  which  was 
to  introduce  new  evidence  to  be  taken  after  the  cause  had  been 
set  down  for  a  hearing,  he  added  :  "  The  ne.xt  ground  for  this 
motion  is  the  materiality  of  the  farther  evidence,  which  it  is 
supposed  can  be  given.  If  that  could  be  represented  as  most 
highly  material,  I  dare  not  trust  myself  with  laying  down  a 
precedent  that  would  authorize  attempts  to  bring  forward  an 
application  in  every  ca.se,  where,  even  after  a  cause  had  been 
set  down,  the  party  might  see  that  it  would  not  be  convenient 
to  hear  the  cause  upon  the  evidence  on  which  he  originally  in- 
tended to  put  it.  The  danger  from  that  would  be  enormous." 
Whitelocke  v.  Baker,  13  A"es.  Iv.,  512.  The  only  material 
abatement  of  the  force  of  this  language,  as  applied  to  the 
present  case,  is  that  it  was  s])oken  in  a  case  not  of  newly  dis- 
covered evidence,  but  of  known  evidence  alleged  to  have  been 
improperly  and  irregularly  taken.  Mr.  Chancellor  Kent,  in 
Hamersly  v.  Lambert,  2  John.  Ch.  R.,  432,  reviewed  the  au- 
thorities, and  sustained  the  doctrine,  as  above  stated,  witli  all 
the  weight  of  his  own  great  opinion. 

Another  class  of  exceptions  is  the  proof  of  exhibits  in  the 
cause  after  publication,  and  even  viva  voce  at  the  hearing, 
where  there  has  l)een  an  omission  of  the  pi'oof  in  due  season, 
and  they  are  applicable  to  the  merits,  (iilbert,  in  his  l"\)rum 
Romanum,  page  183,  takes  notice  of  this  })racticc,  and  says: 
"  Upon  this  rehearing  any  exhibit  may  be  |)roved  viva  voce,  as 
upon  the  original  hearing.  ]3ut  no  proof  can  be  offered  of 
any  new  matter  without  special  leave  of  the  court,  which  is 
seldom  granted."  The  like  doctrine  is  fully  suj)ported  in 
manv  cases.  See  Wight  v.  Pilling,  Free,  ("h.,  41)(j  ;  Dashwood 
V.  Lord  Bulkelev,  10  Ves.  R.,  238;  Buckmaster  r.  llarroj),  13 
Ves.,  458  ;  White  r.  Fussell,  1  Ves.  &  B.,  153  ;  lliagins  v.  Mills, 
5  Russ.  R.,  287;  Wyld  r.  Ward,  Younge  ct  Jer.,  384;  \\'il- 
liams  u  Goodchild,  2  Russ.  R.,  91  ;  Dale  r.  Roscbelt,  (5  John. 
Ch.  R.,  25f). 

Another  class  of  excei)tions  is  wht're  depositions  have  been 
sujipressed,  from  the  interi'ogatories  being  leading,  or  for  ir- 
regularity, or  where  it  has  been  discovered  that  a  i)i-oper  I'c- 
lea.se  has  not  been   given  to  make  a  witness  competent  ;   in 


262  KQUITY    PLEADING. 

every  such  case,  from  the  obvious  necessity  and  in  further- 
ance of  justice,  fresh  interrogatories  and  a  re-examination  have 
been  permitted.  Lord  Arundel  v.  Pitt,  Ambl.  R.,  585  ;  Perry 
V.  Silve.ster,  1  Jacob  R.,  83;  Curre  i'.  Bowyer,  3  Swanst.  R., 
357  ;  Sandford  v.  Paul,  3  J3ro.  Ch.  R.,  370  ]  S.  C,  1  Ves.  Jr., 
398  ;  2  Dick.  R.,  750  ;  Spence  v.  Allen,  Prec.  Ch.,  493  ;  Shaw 
V.  Lindsey,  15  Ves.  R.,  380  :  Cox  v.  Allingham,  1  Jacob  R., 
337,  341,  343  ;  Callow  v.  Mince,  2  Vern.  R.,  472.  In  the  case 
of  Sandford  v.  Paul,  2  Dick.  R.,  750  ;  S.  C,  3  Bro.  Ch.  R.,  370 ; 
and  1  Ves.  Jr.  R.,  398,  it  appeal's  from  J\Ir.  Dickons'  Reports 
that  the  suliject  was  a  good  deal  examined,  and  many  author- 
ities are  cited  by  the  reporter  to  show  that  the  strictness  of  the 
rule  had  been  relaxed  in  special  cases  of  this  nature. 

All  these  classes  of  exceptions  stand  upon  peculiar  grounds 
and  steer  wide  from  any  of  the  just  objections  which  have  been 
urged  against  the  introduction  of  new  evidence,  after  the  press- 
ure of  the  evidence,  as  taken,  is  fully  known  to  both  parties. 
The  qualifications  and  limitations  accompanying  tliesc  excep- 
tions demonstrate,  in  the  most  full  and  satisfactory  manner, 
that  the  design  of  upholding  the  policy  of  the  general  rule 
constitutes  the  main  ingredient  in  the  view  of  the  court  in 
acceding  to  or  refusing  every  application.  If  the  existence  of 
the  evidence  is  fulh'  known  at  the  time  of  the  taking  of  the 
depositions,  and  if  it  is  not  purely  the  case  of  written  evidence, 
it  will  be  difficult  to  find  any  uniform  relaxation  of  the  gen- 
eral rule,  that,  after  publication  passed,  and  the  depositions 
have  been  seen,  no  new  evidence  shall  be  admitted. 

The  question,  then,  is  reduced  to  this  :  whether  new  evi- 
dence by  witnesses,  which  has  been  discovered  since  publica- 
tion has  passed,  and  the  contents  of  the  depositions  been  made 
known,  can,  consistently  with  the  general  objects  and  purposes 
of  the  rule,  be  allowed?  Now,  this  is  partly  a  matter  of 
authority,  and  partly  of  principle.  And  I  fully  agree  tliat  if, 
upon  a  rehearing,  or  upon  a  bill  of  review,  or  upon  a  bill  in 
the  nature  of  a  bill  of  review,  the  evidence  of  new  witnesses 
ought  to  be  let  in,  then  it  ought  now  to  be  allowed,  to  avoid 
circuity  of  remedy  and  increased  expenses  in  litigation.  If, 
on  the  other  hand,  it  would  not,  under  such  circumstances,  be 
allowed  ;  and  if,  in  analogous  cases,  it  has  been  rejected  ;  and 
if  no  direct  authority  can  be  shown  in  favor  of  the  motion, 
then,  since  it  must  be  a  case  of  not  infrequent  occurrence  in 
practice,  each  of  these  considerations  will  fui'nish  strong 
objections  against  the  motion. 


WOOD    V.    MANN.  2Co 

I  have  said  that  if",  upon  a  rchcai-inn;  or  a  bill  of  review,  tlio 
plaintitt' would  be  entitled  to  the  benetit  of  this  te.stiiixiny,  lie 
ought  now  to  be  entitled  to  it  ;  and,  as  it  is  applicable  to 
points  ah'eady  in  issue,  there  is  no  need  of  a  suj)j)lementary 
bill.  In  this  view  of  the  subject  T  feel  myself  strongly  fortified 
by  the  language  of  Lord  Eldon  in  Milner  v.  Lord  liai'ewood, 
17  Ves.  R.,  148.  "  There  is,"  said  he,  "no  recollection  of  a 
sup[)lemental  bill  of  this  kind  ;  and  if  a  new  practice  is  to  be 
settled,  the  strong  inclination  of  my  oj)ini()n  is,  that  when  the 
particular  case  arises,  where  either  conversation  or  admission  of 
the  defendant  becomes  material  after  answer  or  replication  ; 
or,  as  in  this  instance,  after  examination  of  witnesses  in  the 
original  cause  ;  or  if  a  new  fact  happens  after  publication, 
which  it  is  material  to  have  before  the  court  in  evidence,  when 
the  original  cause  is  heard,  it  is  much  better,  if  the  examina- 
tion of  witnesses,  if  required,  should  be  obtained  uj)on  a 
special  application  for  the  opportunity  of  examining,  and  that 
the  depositions  may  be  read  at  the  hearing  ;  or  if  discovery  is 
required,  that  tlie  part}'  should  file  a  bill  for  that  purpose 
merely  ;  and  if  relief  is  required,  that  the  answer  comprehend- 
ing the  discover}'  should  be  read  at  the  hearing  of  the  original 
cause." 

This  language  would  certainly  seem  to  show  that  there  were 
cases  in  which  new  testimony  might  be  taken  after  publication, 
at  least  as  to  facts  and  conversations  occurring  after  the 
original  cause  is  at  issue,  and  publication  passed.  Here,  how- 
ever, the  application  is  to  admit  newly  discovered  evidence  of 
confessions  before  the  bill  was  filed.  In  W'illan  v.  Willan,  1^ 
Ves.  R.,  591  ;  S.  C.  Cooper  Eq.  R.,  291,  the  same  great  judge 
said:  "It  is  perfectly  established  that  after  publication,  pre- 
vious to  a  decree,  and  the  depositions  have  been  seen,  you  can- 
not examine  witnesses  farther  without  leave  of  the  court,  which 
is  not  obtained  without  great  difiiculty;  and  the  examination 
is  generally  confined  to  some  particular  facts.  At  the  hearing 
of  the  cause  the  court  sees  all  the  evidence  ;  and  if,  instead  of 
deciding  upon  inference,  it  directs  inquiries,  the  decree  direct- 
ing these  inquiries  is,  in  truth,  the  leave  of  the  court  given  for 
farther  exaniiiuition  of  witnesses  upon  the  very  j)oint."  It  is 
diflicult  to  ascertain  the  precise  limitations  which  ought  to  be 
applied  to  language  so  general  ;  and  whether  the  learned 
judge  meant  merely  to  advance  the  suggestion  that  the  court 
might,  to  satisfy  its  own  conscience,  direct  new  evidence  to  be 


2G4  EQUITY    PLEADING. 

taken  at  or  after  the  bearing  ;  or  whether  he  meant  to  state, 
generally,  that  new  testimony  might  be  taken,  upon  a  case 
made  to  the  court,  at  any  time  after  jtublication  and  before 
the  hearing.  Unfortunately,  the  case  did  not  call  for  a  more 
explicit  declaration  of  opinion.  But  my  impression  is,  that  the 
former  was  all  that  was  intended  by  the  language. 

In  Smith  v.  Turner,  3  P.  Will.  R.,  413,  the  cause  was 
heard,  and  there  appearing  to  the  court  some  reason  to  suspect 
that  the  defendant  had  a  deed  in  his  custod}^  it  was  oi'dered 
that  he  should  be  examined  on  interrogatories  touching  the 
deed.  Upon  the  examination  he  denied  his  having  the  deed 
and  all  the  circumstances  relating  thei'eto.  The  master  certi- 
fied, notwitlistanding  that  he  thought  it  reasonable,  that  the 
])laintitl',  who  prayed  a  commission  to  examine  witnesses  to 
falsify  the  defendant's  examination,  should  have  one.  But 
tlie  court  refused  it,  saying  :  "At  this  rate  three  or  four  causes 
might  spring  out  of  one,  and  though  there  could  be  no  mis- 
chief in  examining  the  part}'  himself,  yet  the  examining 
witnesses,  after  publication  j)assed,  especially  where  it  may 
relate  to  the  matter  in  issue,  is  against  the  rule  of  the  court, 
and  may  be  greatly  inconvenient  and  make  causes  endless." 
This  ca.se  ceitainly  affords  a  strong  illustration  of  the  real 
purport  of  the  general  rule,  and  would  make  one  hesitate  in 
supposing  that  Lord  Ehlon  meant,  in  the  cases  above  stated, 
to  maintain  a  broader  doctrine. 

In  Ward  v.  Kyles,  Moseley  R.,  377,  the  court  would  not 
allow  a  party  in  a  cross-bill  to  examine  witnesses,  after  pul>li- 
cation  {)assed  and  the  depositions  seen,  to  the  matters  in  issue 
in  the  oiiginal  cause.  On  that  occasion,  tlie  lord  chancellor 
said  :  "  '^I'here  is  no  rule  in  this  court  more  sacred  than  that 
witnesses  shall  not  be  examined  in  another  cause  to  matters  in 
issue  in  a  former."  Yet.  certainly,  in  a  cross-bill,  the  i)arty 
would  be  entitled  to  more  favor  than  u})on  a  mere  appHcation 
in  the  original  cause. 

In  The  Mayor  of  London  v.  Dorset,  1  Ch.  Cas.,  228,  where  a 
trial  of  an  issue  was  directed  at  law,  an  application  was  made 
for  a  commission  to  examine  a  witness  eight}'  years  old  who 
was  not  discovered  until  that  time  and  Avas  unable  to  travel. 
If  she  was  able  to  travel  she  would  be  examinable  at  the  trial, 
though  publication  had  pas.sed.  The  court  granted  the  com- 
mission, aj)parently,  as  it  would  seem,  upon  the  ground  that 
otlierwisc^  the  testimony  would  be  lost;  and  yet  the  witness 
niiglit,  if  living,  be  examinal)le  at  the  trial  at  law. 


WOOD    V.    MANN.  205 

In  Banks  r.  Faniiiliarson,  Anibl.  II.,  l-io  ;  S.  C,  1  I)ick.  K., 
67,  where  a  hearing  wa."^  adjourned  over  and  it  was  moved  for 
liberty  to  examine  a  witness  to  jirove  the  handwriting  of  a 
witness  to  a  deed,  material  in  the  cause,  tlie  motion  was 
granted  by  Lord  Ilardwicke.  ISo,  in  Abrams  v.  Winshup,  1 
Russ.  K.,  52(),  where  the  evidence  proved  the  execution  of  the 
will ;  but  the  witnesses  had  not  been  examined  as  to  tlie  sanity 
of  the  testator ;  the  cause  was  adjourned  at  the  hearing  and 
liberty  given  to  exhibit  an  interrogatory  to  prove  liis  sanity. 
In  each  of  these  cases  the  object  was  sj)ecial  to  establish  the 
verity  of  a  necessary  document  in  the  cause. 

In  Blake  v.  Foster,  2  Ball  &  Beatt.  R.,  457,  an  application 
was  made  upon  the  hearing  for  libert}^  to  adduce  newly- 
discovered  evidence,  partly  oral  and  })artly  documentary.  It 
was  rejected,  not  upon  any  ground  of  the  natui-e  of  the  evi- 
dence, but  because  it  was  not  in  reality  newly  discovered.  The 
case,  therefore,  decides  nothing  to  our  present  purpose. 

In  Clark  v.  Jennings,  ]  Anst.  R.,  173,  174,  a  motion  was 
made  after  publication  for  leave  to  exhibit  interrogatories  to 
authenticate  an  old  paper  writing  material  in  the  cause,  and 
for  a  commission  to  prove  the  same.  The  motion  was  opposed 
as  being  too  late  and  that  exhibits  only  can  be  proved  after 
publication.  The  court  of  exchequer  thought,  that  though 
not  an  exhibit,  it  was  in  the  nature  of  one,  and  granted  the 
rule,  so  as  that  it  did  not  delaj'  the  hearing  of  the  cause.  It 
is  proper  to  remark  that  the  application  was  confined  to  a 
mere  written  document. 

In  "Williamson  v.  Hutton,  9  Price  R.,  194,  after  a  tithe 
cause  had  been  set  down  for  a  re-hearing,  a  motion  was  made 
on  behalf  of  the  plaintiff  for  the  examination  of  one  or  more 
witnesses,  to  prove  certain  accounts  or  rentals,  and  a  terrier  or 
memorandum,  made  by  a  former  vicar,  and  to  read  the  depo- 
sitions at  the  re-hearing,  upon  the  ground  of  their  having 
been  discovered  since  the  original  hearing  and  were  belbre 
unknown  to  the  plaintiff.  The  court  granted  the  motion,  and 
it  was  added,  "  If  these  papers  had  been  found  at  the  hearing 
we  should  have  ordered  the  cause  to  stand  over  for  the  ])ur- 
pose  of  giving  the  plaintiff  an  opi)ortunity  of  exhibiting 
an  interrogatory."  This,  too,  was  the  case  of  a  written  docu- 
ment. 

In  Cox  V.  Allingham,  Jacol)  R.,  337,  permission  was  given 
at  the  hearing  to  exliibit  an  interrogatory  as  to  the  loss  of  a 


26G  EQUITY    PLEADING. 

deed,  omitted  by  mistake  to  be  proved  in  the  i)roper  manner. 
Sir  Thomas  Plumer,  in  delivering  lii.s  opinion  on  tliis  occa- 
sion, stated  his  strong  impression  of  the  dangers  that  would 
arise  if  in  ever}-  instance  a  jtarty,  whose  case  broke  down  at 
the  hearing,  were  at  liberty  to  go  into  i'arther  evidence.  At 
the  same  time  he  admitted  that  it  was  too  late  to  argue  that 
there  could  be  no  case  of  exception  to  the  general  rule,  after 
it  had  been  departed  from  in  some  instances  and  by  great 
avithorities.  He  also  took  notice  of  the  circumstance  that  the 
evidence  proposed  to  be  given  related  oidy  to  the  proof  of  a 
document. 

In  Ord  V.  Noel,  G  Madd.  11.,  127,  an  ap[)lication  was  made 
to  file  a  supplemental  bill,  in  the  nature  of  a  bill  of  review, 
on  account  of  the  discovery  of  some  deeds  and  facts  connected 
therewith  since  the  decree.  The  vice-chancellor  refused  the 
petition;  and  the  only  remarks,  material  to  our  present  pur- 
pose, wliich  he  made  on  that  occasion,  are:  that  if  the  ])laintiff 
had  applied,  after  he  had  discovered  the  contents  of  these 
deeds,  and  before  the  cause  was  finally  heard,  to  have  the 
benefit  of  this  discover}'  at  the  hearing,  the  court  would  have 
found  the  means  to  render  him  that  justice;  and  that  the  new 
matter  for  a  bill  of  the  nature  proposed  must  be  .such  as,  if 
unanswered,  would  clearly  entitle  the  })laintitf  to  a  decree,  or 
would  raise  a  question  of  so  much  nicety  and  difficulty  as  ta 
be  a  fit  subject  of  judgment  in  a  cause.  Brigham  v.  Dawson, 
Jacob  R.,  243,  was  a  similar  application  and  shared  a  .similar 
fate. 

Coley  V.  Coley,  2  Younge  &  Jerv.  R.,  44,  was  an  application, 
after  publication  passed,  and  tlie  cause  set  down  for  a  hearing,, 
for  liberty  to  examine  two  further  witnesses,  one  only  having 
been  examined,  to  prove  the  execution  of  a  will  in  the  plead- 
ings mentioned.  The  court  granted  it,  saying  that  if,  u})on 
the  hearing  of  the  cause,  the  plaintiff  had  been  unable  to- 
prove  the  execution  of  the  will,  the  case  would  have  been 
allowed  to  stand  over  for  the  purpose  of  su})plying  that  proofs 
U[)on  payment  of  the  costs  of  the  clay. 

Then  came  Wyld  v.  Ward,  2  Younge  &  Jer.  R.,  881,  where,, 
upon  a  re-hearing,  a  motion  was  made  to  exhibit  an  interroga- 
tory to  prove  certain  facts,  upon  the  ground  that  they  were' 
newly  discovered  since  the  original  hearing.  Upon  this  occa- 
sion there  was  an  elaborate  argument  by  counsel.  But  the 
court  granted  the  motion,  saying  that  it  had  a  discretion  to 


WOOD    V.    MANN.  207 

grant  or  refuse  it,  according;  to  the  circumi^taiiccs  of  tlu-  j)ar- 
ticular  case. 

In  Williams  v.  Goodchild,  2  lluss.  ,R.,  01,  an  application 
was  made  upon  an  appeal  from  a  decree  of  the  vice-chancellor 
to  the  lord  chancellor,  for  })erniission  to  use,  on  the  hearin<i:  of 
the  appeal,  some  old  documents  and  bailiil's'  accounts,  which 
had  been  discovered  since  the  original  hearing.  On  that 
occasion,  Lord  Eldon  said:  "I  cannot  lay  it  down  that  new 
evidence  can  in  no  case  be  received;  nor  will  I  decide  that  it 
is  not  to  be  introduced  in  this  case,  if  the  evidence  here  ten- 
dered shall  be  shown  to  be  in  its  nature  admissible,  and  a 
proper  ground  for  its  introduction  shall  be  laid."  This  ques- 
tion was  afterwards  adjusted  by  an  arrangement  between  the 
parties. 

These  are  all  the  English  authorities,  bearing  directly  on 
the  point  now  before  the  court,  which  the  researches  of  coun- 
sel, as  well  as  my  own,  have  brought  to  my  notice.  What  is 
very  remarkable  is,  that  not  one  of  them  presents  the  case  of 
an  application  to  introduce  newly-discovered  oral  evidence,  or 
newly-discovered  witnesses;  but  they  all  relate  to  written 
documentary  evidence.  The  courts  upon  deciding  upon  these 
applications,  however,  made  no  allusion  to  any  distinction  or 
practice  excluding  oral  evidence  ;  and  the  generality  of  the 
language  sometimes  used  might  incline  one  to  believe  that  the 
evidence  of  new  witnesses  might,  under  some  circumstances, 
be  within  the  contemplation  of  the  court. 

Finding  no  direct  English  authoi'itv,  either  way,  uj)on  the 
point  of  the  exclusion  of  oral  evidence,  unconnected  with  new 
written  evidence,  I  have  sought  for  inl"ormation  in  cases  of  an 
analogous  nature,  such  as  bills  of  review,  and  supplementary 
bills  in  the  nature  of  bills  of  review;  for  (I  repeat  it)  if,  in 
such  cases,  the  evidence  would  be  admissible,  it  ought  now  to 
be  admitted.  Unfortunately,  there  are  not  many  cases  of  this 
sort  to  be  found,  and  those  which  do  exist  do  not  afford  any 
very  satisfactory'  lights  to  settle  the  question  now  before  the 
court.  Indeed,  bills  of  review  are  of  very  rare  occuri-ence. 
Lord  Chancellor  Lyndhurst,  in  Partridge  v.  Usborne,  5  Kuss. 
R.,  249,  250,  observed,  that  for  the  period  of  a  century  past 
very  few  instances  had  occurred  of  bills  of  review  having  been 
allowed  to  be  filed.  In  that  very  case,  he  allowed  matters, 
dependent  upon  oral  as  well  as  written  evidence,  which  had 
been  discovered  since  the  decree,  to  be  brought  forward  by  a 


268  EQUITY    PLEADING. 

supplemental  bill  in  the  nature  of  a  bill  of  review.  But  then 
they  related  to  facts  not  previously  in  issue  in  the  cause.  He 
thus  settled  a  doubt,  which  had  long  existed  on  this  very  sub- 
ject; and  in  respect  to  which,  there  was  a  dictum  of  Lord 
Eldon  the  other  way,  in  Young  v.  Keighly,  15  Ves.,  557. 

Lord  Chief  Baron  Gilbert  (Gilb.  For.  Rom.,  186),  in  laying 
down  the  rules  as  to  granting  bills  of  review,  puts  one  of  the 
requisites  in  these  words:  "  Thirdly,  the}^  can  examine  to  noth- 
ing that  was  in  issue  in  the  original  cause,  unless  it  be  any 
matter  ha])pening  subsequent,  which  was  not  before  in  issue, 
or  upon  matter  of  record,  or  writing,  not  known  before.  For,  if 
the  court  .should  give  them  leave  to  enter  into  proofs  upon  the 
same  points  that  were  in  issue,  that  would  be  under  the  same 
mischief  as  the  examination  of  witnesses  after  publication,  and 
an  inlet  into  manifest  perjury."  Now,  if  this  is  to  be  deemed 
a  true  exposition  of  the  doctrine  in  courts  of  equity,  it  makes 
an  end  of  the  present  application.  The  difficulty  is,  whether 
the  modern  decisions  affirm  the  practice  in  so  limited  a  form. 

Lord  Hardwicke  in  Norris  v.  Le  Neve,  3  Atk.  R.,  35,  said 
that  the  rules  of  Lord  Bacon  upon  bills  of  review  had  never 
been  departed  from.  And,  professing  to  give  the  substance  of 
those  rules,  he  added,  "  By  the  established  practice  of  this 
court  there  are  two  sorts  of  bills  ot  review  :  one  founded  on 
sup{)0sed  error  api)earing  in  the  decree  itself;  the  other  a  new 
matter,  which  must  arise  after  the  decree;  or  upon  new  proof, 
which  could  not  have  been  used  at  the  time  when  the  decree 
passed."  The  ordinance  of  Lord  Bacon  is  substantially  as 
here  stated  ;  his  language  on  the  last  matter  is :  "  Neverthe- 
less, upon  new  proof  that  is  come  to  liglit  after  the  decree 
made,  and  could  not  possibly  have  been  used  at  the  time  when 
the  decree  passed,  a  bill  of  review  may  be  grounded." 
Beames'  Ord.  in  Ch.,  p.  2,  and  note  (3).  See,  also,  Patterson 
V.  Slaughter,  Ambl.  R.,  293.  Li  the  case  of  Norris  v.  Le 
Neve,  the  ap{)lication  for  the  bill  of  review  was  not  confined 
to  "new  proof"  of  a  mere  documentary  character,  but  it  em- 
braced other  facts  of  an  oral  nature  ;  and  Lord  Hardwicke 
took  no  notice  of  any  distinction  between  oral  and  written 
evidence.  But  he  did  take  notice  that  the  new  discoveries 
amounted  to  no  more  than  corroboratives  only  of  the  former 
points  in  i.ssue.  In  another  case,  Gould  /'.  Tnnci'ed,  3  Atk.  R., 
SS^,  before  the  same  great  judge,  no  notice  was  taken  of  any 
positive    distinction    between     oral     and     written    evidence, 


WOOD    V.     MANN.  200 

although  certainly  there  nmy  he  godd  ground  (or  sueh  a  dis- 
tiuction.  In  "^'oung  r.  Keighly,  1")  \'es.,  557,  which  indeed 
was  an  application  founded  on  the  ^liscovery  of  new  docu- 
mentary evidence,  Lord  Eldon  said  :  "  As  far  as  I  can  ascer- 
tain, what  the  court  pcrniits  with  regard  to  bills  of  review 
upon  facts  newly  discovered  (he  does  not  say  documents),  the 
decisions  appear  to  have  been  upon  new  evidence,  which,  if 
produced  in  time,  would  have  supported  the  original  case." 
He  added  also  in  the  same  case :  "  The  ground  is  even 
a|»parent  on  the  face  of  the  decree  ;  a  new  evidence  of  a  fact 
(not  saying  written  evidence)  materially  })ressing  u})on  the 
decree,  and  discovered  at  least  after  publication  in  the  cause." 
In  Partridge  v.  Usborne,  5  Kuss.  R.,  145,  the  new  evidence 
(which  went  to  j)oints  not  before  in  issue),  was  certainly 
largely  founded  in  mere  oral  proofs  and  testimony  ;  yet  it  was 
admitted.  The  language  of  Lord  Eldon  in  Milner  r.  Lord 
Harwood,  17  Ves.  K.,  148,  already  cited,  appears  to  me  to 
confirm  the  conclusion  that,  u[)on  rehearings  and  bills  of  re- 
view upon  newly-discovered  evidence,  parol  evidence  to  I'acts 
is  not  necessaril}'  prohibited  by  any  general  ])ractiee  or  i-ule 
of  law. 

I  had  occasion,  in  the  case  of  Dexter  v.  Arnold,  5  Mason  R., 
303,  313,  314,  to  examine  this  subject  with  a  good  deal  of  care 
in  reference  to  bills  of  review.  I  was  not  at  that  time,  able  to 
satisfy  my  mind  that  the  doctrine,  as  to  the  admissibility  of 
newly-discovered  evidence,  w'as  limited  to  written  evidence  of 
a  documentary  nature.  The  subsequent  authorities  have  not 
helped  the  matter  in  this  ])articular.  U})on  principle  it  may, 
perhaps,  be  found  diflicult  in  all  cases  j)ractically  so  to  limit  it ; 
although  no  person  is  more  sensible  than  myself  of  the  great 
inconvenience  and  danger  of  admitting  new  evidence  of  a 
parol  nature,  after  the  former  evidence  in  the  cause  has 
been  seen;  and,  a /ortiori,  after  the  original  cause  has  been 
heard.  The  reasons  are  well  stated  in  Jones  v.  Purefov,  1 
Vern.  R.,  47  ;  and  still  more  forcibly  in  the  case  of  Res- 
pass  V.  M'Clanalian,  Hardin  R.,  346,  347,  to  which  I  shall 
presently  advert.  In  examining  the  decisions  of  Mr.  Chancel- 
lor Kent,  in  which  he  has  collected  the  leading  English  deci- 
sions on  this  point,  not  only  after  jtublication,  but  u}K)n  bills 
of  review,  it  will  be  seen  that  he  has  exhibited  a  strong  disin- 
clination to  allow  the  introduction  of  any  newly-discovered 
evidence,  merely  cumulative,  or  not  of  a  documentary  nature. 


270  EQUITY    PLEADING. 

This  is  manifested  in  an  especial  manner  in  Hamersley  v. 
Lambert,  2  Johns.  Ch.  R.,  432,  in  Livingston  v.  Hnbbs,  3 
Johns.  Ch.  R.,  124,  and  Troup  v.  Sherwood,  3  Johns.  Ch.  R., 
558.  Yet  he  is  compelled  to  admit  that  there  ma}^  be  excep- 
tions to  the  general  rule.  I  cannot  find,  however,  that  he  has 
ever  made  a  direct  decision  that  the  newly-discovered  evidence 
of  witnesses  to  the  facts  in  issue  is  not  admissible  on  a  hear- 
ing, or  rehearing,  or  bill  of  review.  He  has,  indeed,  on  one 
occasion,  said  that  the  nature  of  the  newly-discovered  evidence 
must  be  different  from  that  of  the  mere  accumulation  of  v^'it- 
nesses  to  a  litigated  fact.  Livingston  v.  Hubbs,  3  Johns.  Ch. 
R.,  127.  But  his  decision  did  not  turn  particularly  upon  that 
point.  The  language  in  Taylor -y.  Sharp,  3  P.  Will.,  371,  upon 
which  he  has  [)laced  some  reliance  for  this  qualification  of  the 
doctrine,  does  not  seem  to  me  to  have  looked  to  any  supposed 
ditierence  in  regard  to  the  nature  of  the  new  matter,  that  is, 
whether  newly-discovered  testimony,  or  newlj'-discovered  docu- 
ments ;  but  singly  to  the  fact  that  it  was  newly-discovered 
matter  of  some  sort. 

I  have  thus  gone  over  the  principal  cases  (with  an  exception, 
which  will  presently  appear)  which  seem  to  me  to  be  ap- 
plicable to  the  more  general  question  before  the  court.  The 
result  has  been  already  incidentally  suggested.  But  I  will  give 
it  in  a  more  direct  and  positive  form.  It  is,  that  there  is  no 
universal  and  absolute  rule,  which  prohibits  the  court  from 
allowing  the  introduction  of  newly-discovered  evidence  of  wit- 
nesses to  facts  in  issue  in  the  cause,  after  publication  and 
knowledge  of  the  former  testimony,  and  even  after  the  hear- 
ing. But  the  allowance  of  it  is  not  a  matter  of  right  in  the 
party,  but  of  sound  discretion  in  the  court,  to  be  exercised 
cautiously  and  sparingly,  and  only  under  circumstances 
which  demonstrate  it  to  be  indispen.sable  to  the  merits  and 
justice  of  the  cause. 

I  am  driven,  therefore,  and  I  regret  it,  by  this  view  of  the 
matter,  to  the  consideration  of  the  special  circumstances  of  the 
present  case,  and  to  decide  whether  the  court  ought,  upon 
geueral  principles,  and  in  the  exercise  of  its  just  discretion,  to 
grant  the  present  petition.  The  objections  which  forcibly 
present  themselves  against  it  are  (1)  the  great  length  of  time 
since  the  publication  of  the  evidence  ;  (2)  the  nature  of  the 
evidence  it.self,  being  the  asserted  confessions  of  the  defendant 
to  many  of  the  most  material  points  in  the  case,  a  species  of 


\Y()OI)    V.    MANX.  271 

evidence,  of  wliicli  it  Ims  \)vvn  li-uly  rcinni'kcd,  that  it  is  the 
most  easy  to  fabricate  and  the  most  diilieiilt  to  refute  ;  and  {'<]) 
the  faet  that  it  is  merely  eumulativ^'  or  eorrohorative  testi- 
mony to  the  vei-y  points  in  issue.  In  my  ju<l«>nicnt,  caeli  of 
these  objections  has  <j,reat  inti'insic  weiglit.  The  hist  has  l)een 
thought  by  Mr.  Chancellor  Kent  as  of  itself  decisive.  T  find, 
too,  that  the  same  view  of  the  matter  has  been  taken  by  sev- 
eral other  of  the  American  coui'ts,  upon  very  solenui  occa- 
sions. In  Resj)ass  v.  McClanahnn,  Ilaidin-  U.,  842,  it  was 
held  by  the  court  of  ai>peals  of  Kentucky,  at  that  time  adorned 
by  minds  of  uncommon  ability,  that  the  discovery  of  new 
witnesses  to  prove  a  matter  of  fact  in  issue  in  the  original 
cause  is  not  a  j2:round  for  a  bill  of  review.  The  reasoning  of 
the  court  is  so  very  full  and  clear  on  the  j)oint,  that  I  would 
gladly  transfer  it  to  this  ojjinion,  if  it  would  not  occupy  too 
large  a  space.  Upon  that  occasion  the  court  said  that,  after 
the  most  careful  search,  they  could  not  find  one  case  reported 
in  which  a  bill  of  review  had  been  allowed  on  the  discovery  of 
new  witnesses,  to  prove  a  fact  which  had  Ix'Ibre  been  in  issue; 
idthougli  there  were  many,  where  bills  of  leview  have  been 
sustained  on  the  discovery  of  records  and  other  writings  relat- 
ing to  the  title  geueralhj  \)\\i  in  issue.  The  same  doctrine  has 
been  since  repeatedly  affirmed  by  the  same  court  ;  and  partic- 
ularly in  Bowles?'.  South,  Hardin  R.,  451,  and  Head  v.  Head, 
3  jNIarsb.  R.,  121.  It  was  also  adopted  and  acted  on  by  the 
court  of  appeals  of  ^'irginia  in  Randolph's  Ex'rs  v.  Randolph's 
Ex'rs,  1  Hen.  &  Munf.  R.,  180. 

I  am  not  able  to  .satisfy  myself  that  this  objection  to  the  evi 
deuce  is  not  well  founded.  On  the  conlraiy,  the  more  1  re- 
flect, the  more  I  feel  the  difliculty  of  the  admissibility  of 
merely  cumulative  and  corroborative  testimony,  though  newly 
discovered,  to  the  facts  in  issue.  If  I  were  to  decide  in  favor 
of  its  admissibility,  I  should,  as  far  as  I  know,  l)e  the  first  judge 
who  ever  acted  upon  so  broad  a  doctrine.  1  am  not  bold 
enough  to  adventuie  ujmn  such  a  course.  On  the  contrary,  if 
I  were  called  upon  to  frame  a  rule,  it  would  be  to  exclude  all 
testimony  of  newly-discovered  witnesses  to  any  facts  in  issue, 
unless  connected  with  some  newly-discovei'cd  documents. 
There  is  no  authority  in  favor  of  the  petition.  There  is  au- 
thority against  it.  No  book  of  practice  .'^tales  anything  which 
leads  to  the  conclusion  that  evidence,  like  that  now  pro|)osed, 
has  ever  been  admitted  to  the  original   hearing,  or  u])on  a  re- 


272  EQUITY    PLEADING. 

hearing,  or  upon  any  bill  in  the  nature  of  a  bill  of  review.  So 
far  as  the  books  of  practice  speak,  they  lead  in  the  opposite  di- 
rection. My  judgment,  therefore,  is,  under  all  the  circum- 
stances, that  the  motion  ought  not  to  be  granted. 


CHAPTER  IX. 

AMENDMENTS SUPPLEMENTAL    AND    REVIVAL    15II.LS. 

Itu'e  2S. 

The  plaintiff  shall  be  at  libei'ty,  as  a  matter  of  course,  and 
without  payment  of  costs,  to  amend  his  bill,  in  any  matters 
whatsoever,  before  any  copy  has  been  taken  out  of  the  clerk's 
ofhce,  and  in  any  small  matters  afterwards,  such  as  tiling 
blanks,  correcting  errors  of  dates,  misnomer  of  ])arties,  misde- 
scription of  premises,  clerical  errors,  and  generally  in  matters 
of  form.  But  if  he  amend  in  a  matei'ial  point  (as  he  may  do 
of  course)  after  a  copy  has  been  so  taken,  before  any  answer  or 
plea  or  demurrer  to  the  bill,  he  shall  |>ay  to  the  defendant  the 
costs  occasioned  thereby,  and  shall,  without  delay,  furnish  him 
a  fair  coj)y  thereof,  free  of  expense,  with  suitable  refei'ences  to 
the  j)laces  where  the  same  are  to  be  inserted.  And  if  the 
amendments  are  numerous,  he  shall  furnish,  in  like  manner, 
to  the  defendant,  a  cop}'  of  the  whole  bill  as  amended  ;  and  if 
there  be  more  than  one  defendant,  a  copy  shall  be  furnished  to 
each  defendant  affected  thereby. 

Bu'e  20. 

After  an  answer,  or  ])lea,  or  demurix'r  is  ])ut  in,  and  before 
replication,  the  plaintiff  may,  upon  motion  or  ])etition,  with- 
out notice,  obtain  an  order  from  any  judge  of  the  court  lo 
amend  his  bill  on  or  before  the  next  succeeding  rule-day.  upon 
payment  of  costs  or  without  payment  of  costs,  as  the  coui-t  or 
a  judge  thereof  may  in  his  disci-etion  direct.  But  after  re|il;- 
cation  filed,  the  plaintiff  shall  not  be  permitte<l  to  witlidiaw  it 
and  to  amend  his  bill,  except  uj)on  a  sj)ecial  order  of  a  judge 
of  the  court,  upon  motion  or  petition,  after  due  notice  to  the 
other  party,  and  upon  proof  by  allitlavit  that  the  same  is  not 
18  (273) 


274  EQUITY    PLEADING. 

made  for  the  purpose  of  vexation  or  delay,  or  that  the  matter 
of  the  proposed  amendment  is  material,  and  could  not  with 
reasonable  diligence  have  been  sooner  introduced  into  the  bill, 
and  upon  the  plaintiff's  submitting  to  such  other  terms  as 
may  be  imposed  by  the  judge  for  speeding  the  cause. 

Rtile  30. 

If  the  j)laintiti'  so  obtaining  any  order  to  amend  his  bill 
after  answer,  or  plea,  or  demurrer,  or  after  replication,  shall 
not  file  his  amendments  or  amended  bill,  as  the  case  may  re- 
quire, in  the  clerk's  office  on  or  before  the  next  succeeding 
rule-day,  he  shall  be  considered  to  have  abandoned  the  same, 
and  the  cause  shall  proceed  as  if  no  application  for  any  amend- 
ment liad  been  made. 

Mule  37' 

Whenever  any  suit  in  equity  shall  become  defective  from 
any  event  happening  after  the  filing  of  the  bill  (as,  for 
example,  by  change  of  interest  in  the  parties),  or  for  any  other 
reason  a  supplemental  bill,  or  a  bill  in  the  nature  of  a  sup- 
plemental bill,  may  be  necessary  to  be  filed  in  the  cause, 
leave  to  file  the  same  may  be  granted  by  any  judge  of  the 
court  on  any  rule-day  U})on  proper  cause  sliown  and  due 
notice  to  the  other  party.  And  if  leave  is  granted  to  file  such 
supplemental  bill,  the  defendant  shall  demur,  plead,  or  answer 
thereto  on  the  next  succeeding  rule-day  after  the  supple- 
mental bill  is  filed  in  the  clerk's  office,  unless  some  other  time 
shall  be  assigned  by  a  judge  of  the  court. 

Itnfe  (iO. 

After  an  answer  is  put  in,  it  may  be  amended,  as  of  coui-se, 
in  any  matter  of  form,  or  by  filling  up  a  blank,  or  correcting 
a  date,  or  reference  to  a  document,  or  other  small  matter,  and 
be  re-sworn,  at  any  time  before  a  replication  is  put  in,  or  the 
cause  is  set  down  for  a  hearing  upon  bill  and  answer.  But 
after  replication,  or  such   setting  down  for  a  hearing,  it  shall 


I'AKKliri.SI'    \-.     KINSMAN.  275 

not  be  aiiU'iiilcd  in  niiy  inatei-ial  niattiTs,  as  l)y  addiiiu  new 
facts  oi'  (lofonscs,  or  (lualit'yiiii;  or  altering-  (lie  oi-iii,iiial  state- 
ments, except  by  s])ecuil  leave  of  the  couri,  oi-  of  a  judge 
thereof,  up.on  motion  and  cause  shown,  after  due  notice;  to  the 
adverse  party,  supported,  if  required,  by  afiidavit;  aud  in 
every  case  where  leave  is  so  granted,  the  court  or  the  judge 
granting  the  same  may,  in  his  discretion,  require  that  the 
same  be  separately  engrossed,  and  added  as  a  distinct  amend- 
ment to  the  original  answer,  so  as  to  be  distinguishable  there- 
from. 

llule  rtd. 
Whenever  a  suit  in  equity  shall  l)econie  abated  by  the 
death  of  either  i)arty,  or  b}'  any  other  event,  the  same  may  be 
revived  by  a  bill  of  revivor  or  a  bill  in  the  nature  of  a  bill  of 
revivor,  as  the  circumstances  of  the  case  may  require,  filed  by 
the  pro})er  parties  entitled  to  revive  the  same,  which  bill  may 
be  filed  in  the  clerk's  office  at  any  time;  and,  U|)on  sugges- 
tion of  the  facts,  the  pro[)er  process  of  subpoena  shall,  as  of 
course,  be  issued  by  the  clerk,  requiring  the  proper  representa- 
tives of  the  other  party  to  appear  and  show  cau.se,  if  any  they 
have,  why  the  cause  should  not  bo  revived.  And  if  no  cause 
shall  be  shown  at  the  next  rule-day  which  shall  occur  after 
fourteen  days  from  the  time  of  the  service  of  the  same  process, 
the  suit  shall  stand  revived,  as  of  course. 

liule  ijS. 

It  shall  not  be  necessary  in  any  bill  of  revivor  or  supple- 
mental bill  to  set  forth  any  of  the  statements  in  the  original 
suit,  unless  the  special  circumstances  of  the  case  may  re- 
quire it. 

PARKHURST  v.  KINS:\r.\X. 
(Circuit  Court  for  New  York  :  2  IJlatchford,  72-76.     1848.) 

Statement  of  Facts. — Application  for  leave  to  file  a  .sup- 
plemental bill  making  Goddard  a  party  and  adding  new 
charges  against  Kinsman,  based  partly  on  recent  facts  and 
partly    on    newly-discovered    evidence.     Notice    having  been 


276  EQUITY    PLEADING. 

served  on  Kinsman  and  Goddard,  botli  opposed  the  application 
on  grounds  that  will  appear  sufficiently  in  the  opinion  of  the 
court.  The  original  bill  was  founded  on  an  agreement  be- 
tween the  plaintiff  and  Kinsman,  which,  upon  certain  condi- 
tions, gave  to  the  latter  the  right  to  use  the  former's  patent. 
There  had  been  a  provisional  injunction,  however,  forbidding 
any  further  making  or  selling  of  the  machines. 

Opinion  by  Betts,  J. 

It  seemed  to  be  supposed  on  the  argument,  by  the  counsel 
for  the  defendant,  that  the  supreme  court  in  requiring,  by 
rule  57,  notice  to  be  given  on  an  application  for  leave  to  file  a 
■supplemental  bill,  had  put  the  petition  upon  the  footing  of  the 
bill  itself  when  filed,  and  tliat  the  application  could  be 
defeated  by  showing  that  the  petition  did  not  make  a  case 
•establishing  the  propriety  of  the  bill,  and  the  legal  liability  of 
the  party  sought  to  be  brought  in,  to  the  remedy  sought  by 
the  suit.  Such,  however,  is  not  the  effect  of  the  rule.  It  does 
not  essentially  change  the  practice  as  it  before  existed.  In 
England  and  in  this  state  supplemental  bills  were  allowed  to 
be  filed  only  by  leave  of  the  court  (Dan.  Ch.  Pr.,  1655,  Am. 
ed.,  and  notes ;  Eager  v.  Price,  2  Paige,  333  ;  Law  rence  v. 
Bolton,  3  id.,  294)  ;  and  the  court,  in  addition,  frequently 
oidered  notice  to  be  given  of  the  application.  Eager  v.  Price, 
2  Paige,  333.  The  design  of  notice  is  to  avoid  precipitation 
and  a  needless  accumulation  of  pleadings.  But  the  court 
inquires  no  further  than  to  see  whether  probable  cause  exists 
for  the  new  proceeding.  The  petition,  accordingly,  need  not 
embrace  the  averments  intended  to  be  inserted  in  the  supple- 
mental bill,  but  need  only  advise  the  opposite  party  and  the 
court  of  the  ground  on  which  the  relief  is  applied  for.  The 
court  may,  therefore,  deny  leave  to  file  a  supplemental  bill, 
and  yet  pei'mit  an  annMulment  of  tlie  original  bill  ;  and  this 
ability  to  shaj)e  and  abiidge  the  pleadings  may  be  the  reason 
of  the  practice  which  inquires  the  assent  of  the  court  to  the 
filing  of  a  su|)plemental  bill.  In  my  opinion,  then,  all  that 
tlie  court  looks  to  on  motions  of  this  description  is  to  see  that 
the  jtlaintiff  states  facts  or  circumstances  which,  if  propeily 
pleaded,  would  sustain  a  su))plemental  bill. 

The  allegations  in  the  ])etition  in  i-egai-d  to  Goddard  would 
undoubtedly  be  insufficient  as  averments  in  a  supplemental 
bill,  l)ut  they  embrace  matters  which,  if  well  jileaded,  may 
charge  him  as  a  paity  to  the  suit.     The  court  will  not  decide 


I'ARKHUKST  V.    KINSMAN. 


this  niotidii  on  the  technical  rules  applicahlc  to  a  (Iciimrrcr. 
Tiie  petition  is  sufhciently  definite  in  chargin<;-  that  Cioddard 
has  become  connected  with  the  snhject-niatter  of  the  suit 
against  Kinsman  since  the  original  bill  was  tiled,  and  is,  in 
that  connection,  doing  those  acts  in  relation  to  the  interests  of 
the  j)laintitr  which  this  court,  by  injunction,  lias  restrained 
Kinsman  from  doing  ;  and  that  is,  in  substance,  suilicient, 
according  to  all  the  authorities,  to  authorize  the  })laintiff  to 
bring  Goddard  before  the  court  in  the  same  suit  to  answer  for 
his  proceedings.  On  these  points  the  plaintiff  is  entitled  to  a 
discovery  from  Goddard.  It  is  a  mistake  to  construe  the 
petition  as  setting  up,  as  the  ground  of  complaint,  an  inde- 
pendent infringement  by  Goddard  of  the  plaintiff's  rights 
under  his  ])atent.  Its  bearing  and  manifest  intent  is  to  charge 
on  Goddard  a  combination  with  Kinsman,  and  an  acting  in 
concert  with  him  to  defeat  the  right  the  ])laintiff  has  to 
restrain  Kinsman  on  the  equities  of  the  original  bill.  It  is 
enough,  on  this  motion,  to  allege  such  concert  and  combina- 
tion on  information  and  belief,  whether  such  a  charge  would 
or  would  not  be  sufficient  in  the  bill  it.self  The  leave  prayed 
for  must,  therefore,  be  granted  in  respect  to  (Joddard. 

Most  of  the  matters  sought  to  be  inserted  in  the  supple- 
mental bill  in  respect  to  Kinsman  would  be  j)roper  subjects  of 
amendment  to  the  original  bill,  and  could  not  lav  the  founda- 
tion for  a  supplemental  bill.  1  Hoff.  Ch.  Pr.,  .S93,  SdS; 
Story's  Eq.  PL,  §  333.  But.  as  a  discovery  is  sought  from 
Kinsman  in  regard  to  ])articulars  not  stated  in  the  original 
bill,  and  an  answer  to  that  has  been  already  put  in  by  him, 
the  course  of  practice  will  justify  the  filing  of  a  new  bill. 
Mitf  PI.,  62,  3d  Amer.  ed.,  99,  and  note. 

The  laches  imputed  to  the  plaintiff,  in  not  pushing  forward 
his  suit  since  Kinsman's  plea  and  answer  were  put  in,  might 
])erhaps  call  for  a  fuller  excuse,  before  the  court  would  allow 
the  plaintitf  to  change  the  i.ssues  by  amending  the  original 
bill.  Even  then,  howevei-,  the  objection  would  not  stand  upon 
the  ground  of  any  es.sential  injury  to  the  defendant  to  arise 
from  permitting  such  amendment,  for  it  is  not  shown  that  any 
proofs  have  been  taken  by  either  party  under  the  issues,  or 
that  the  defendant  has  availed  himself  of  his  privilege  under 
our  practice  of  speeding  the  cause.  But  a  supplemental  bill 
may  be  filed  at  any  stage  of  a  cause,  even  after  decree  ren- 
dered (Story's  Eq.  PI.,  §  338),  and   the   nature  of  the  present 


278  KQUITY    PLEADING. 

litigation  would  induce  the  court  to  lend  all  reasonable  aid  to 
have  every  dispute  between  the  parties  in  respect  to  their 
rights  as  involved  in  it  definitively  settled,  and  to  leave  noth- 
ing to  be  called  up  and  pursued  hereafter.  Upon  these  con- 
siderations I  shall  authorize  the  supplemental  bill  to  be  filed 
as  prayed  for,  with  the  insertion,  as  against  Kinsman,  of  the 
allegations  referred  to  in  the  petition,  and  which  might  not, 
if  brought  forward  by  themselves,  justify  more  than  an  order 
for  amendment. 

LONGWOKTII  V.  TAYLOR. 
(Circuit  Court  for  Ohio  :  1  McLean,  395-410.     1838.) 

Opinion  of  the  Court. 

From  the  supplementary  bill  lately  filed  it  appears  a  part  of 
the  lot  in  controversy  was  sold  by  the  complainant  to  Canby, 
and  that  he  a.ssigned  his  interest  to  Carneal  ;  and  this  equity 
being  still  in  C-anieal,  it  is  objected  that  he  is  not  made  a  party 
to  the  suit.  Is  Carneal  interested  in  this  controversy?  It  is 
admitted  that  he  might  file  his  bill  against  Taylor,  and  set  up 
his  equity  through  his  assignees;  and  if  he  may  do  this,  is  he 
not  interested  in  the  subject-matter  of  the  bill?  Is  not  the 
court  called  upon  to  act  on  an  equitable  title  which  includes 
the  title  of  Carneal?  And  if  he  be  not  a  party  to  the  suit, 
will  his  rights  be  concluded  by  the  decree? 

It  is  true  he  may  look  to  the  complainant  for  a  deed,  but  is 
he  not  the  as.signee  of  the  plaintift'  to  the  extent  of  the  equity 
he  claims?  The  supreme  court  has  decided  that  an  assignee 
in  equity  must  make  his  assignees  a  party  when  he  asks  a  spe- 
cific execution  of  the  contract ;  and  this  is  required  to  be  done 
that  the  court  may  see  that  the  rights  of  the  assignor  are  duly 
protected.  But  how  much  stronger  is  the  reason  to  make  the 
assignee  of  the  equity  a  party  on  a  bill  filed  by  the  assignor. 
The  interests  of  the  assignee  are  directly  involved,  and  how 
can  these  be  protected  unless  he  be  made  a  party  to  the  suit? 

Carneal  may  have  some  special  ground  of  equity  against 
Taylor  which  the  plaintiff  has  not,  and  a  decree  in  the  case, 
as  it  now  stands,  would  not  prevent  him  from  setting  up  this 
equity  hereafter.  And  if  the  defendant  may  be  again  har- 
assed with  the  assertion  of  a  right  wdiich  is  necessarily  in- 
volved in  this  suit,  he  may  well  object  to  the  further  progress 
of  the  suit  until  Carneal  shall  be  made  a  party,  if,  under  the 


PIERCE    &    MCDONAM)    V.    WKST's    EXI-XJUTOIJ.  'JTH 

limited  jurisdiction  of  this  court,  it  can  he  (h)n('.  He  has  a 
right  to  insist  that  the  whole  controversy  shall  he  decided  in 
the  present  suit. 

It  is  a  well  settled  ))rincii)le  that  the  assignee  of  an  eijuity 
is  a  necessary  party  when  such  equity  is  set  up  in  a  court  of 
chancery.  Carneal  can  he  made  a  party  as  a  eo-i)laintilf,  so 
that  no  ohjection  arises  to  this  I'rom  the  limited  jurisdiction  of 
this  court.  That  some  inconvenience  may  arise  in  making 
assignees  parties,  where  they  are  very  numerous,  may  he  ad- 
mitted ;  hilt  the  same  inconvenience  arises  in  many  other 
cases,  and  for  which  the  law  has  as  yet  })rovided  no  remedy, 
except  in  cases  where  a  few  persons  may  sue  in  Iji'lialf  of 
themselves  and  others. 

The  question  raised  as  to  the  ten  per  cent,  on  the  pun-hase 
money  due,  under  the  new  agreement,  up  to  the  time  of  the 
tender,  is  reserved  until  the  next  term,  at  which  time,  Carneal 
having  heen  made  a  jnirty,  the  court  will  he  prc})ared  to  enter 
a  final  decree. 

[Note. — Only  so  much  of  this  case  is  reported  as  rehites  to  Equi'y  Ploadiny  and 
Practice.  ] 

PIERCE  &  Mcdonald  V.  west's  executor. 

(3  Wash.  C.  C,  354.     1818.) 

Upon  a  rule  thus  obtained  by  the  defendant,  to  show  cause 
why  the  amended  bill  in  this  case  should  not  be  refeired  to 
the  master  for  impertinence,  it  ap|)eared,  that  after  all  the 
original  defendants,  except  two.  had  answered  the  bill,  the 
plaintifl's  obtained  leave  to  amend,  by  making  new  })arties, 
and  calls  upon  all  of  the  defendants  to  answer  this  bill. 

Washington,  Justice.  The  lule  is.  that  the  amended  hill 
should  state  no  more  of  the  original  hill  than  may  be  neces- 
sary to  introduce,  and  to  make  intelligible  the  new  matter, 
which  should  alone  constitute  the  chief  sul)ject  of  the  bill. 
The  reasons  for  this  lule  are  obvious.  Not  only  is  the  incor- 
porating of  the  old  bill  into  the  amended  Ijill  unnecessary,  but 
it  increases  the  costs,  and  exposes  the  defendants,  particularly 
those  who  have  answered  the  original  bill,  to  the  trouble  of 
searching  out  and  separating  the  old  from  the  new  mnttei',  at 
the  ])ei'il  of  having  their  answer  exce])ted  to,  if  any  mistake 
should  happen,  and  all  the  matter  of  the  aiiKiid( d  bill  .-hduld 
not  be  answered. 

The   amended  bill   calls  upon    the  original   delendants   to 


280  EQUITY    PLEADING. 

answer  it,  and  upon  the  new  defendants  to  answer  botli  that 
and  the  original  bill.  Wherever  leave  to  answei  the  hill  is 
granted,  it  is  more  proper  to  file  an  amended  hill,  than  to 
interline  the  original  bill;  particularly,  if  some  of  the  defend- 
ants had  before  answered  that  bill. 

The  rule,  therefore,  must  be  made  absolute.  And  on  mo- 
tion of  the  plaintiff's  counsel  leave  was  granted  to  file  a  new 
amended  bill,  comprising  only  the  new  matter,  instead  of  re- 
ferring the  bill, 

JACKSON  V.   ASHTON. 

(10  Peters,  480.  481.     1836.) 

Appeal  from  U.  S.  Circuit  Court,  Eastern  District  of  Penn- 
sylvania. 

Opinion  by  Mr.  Justice  Story. 

Statement  of  Facts. — A  motion  has  been  made  to  allow 
an  amendment  of  the  record  of  this  case,  by  inserting  an  alle- 
gation of  the  citizenship  of  the  parties,  and  to  reinstate  tliis 
cause  on  the  docket  under  the  following  circumstances :  The 
cause  came  before  this  court  at  the  Januar}'  Term,  1834  ;  and, 
as  will  be  found  in  the  eighth  volume  of  Mr.  Peters'  Reports, 
pp.  148,  149,  was  then  reversed  for  want  of  jurisdiction  of  the 
circuit  court  by  reason  of  the  omission  to  allege  that  the 
parties  were  citizens  of  different  states.  The  appeal  to  this 
court  was  dismissed,  and  the  decree  of  this  court  was  ordered 
to  be  certified  to  the  circuit  court. 

We  are  of  opinion  that,  under  these  circumstances,  the 
record  cannot  be  amended,  or  the  cause  reinstated  in  this 
court.  It  -would,  in  effect,  be  a  reversal  of  the  former  decree 
of  this  court.  We  have  no  power  over  the  decrees  rendered 
by  this  court  after  the  term  has  passed,  and  the  cause  has 
been  dismissed,  or  otherwise  finally  disj)osed  of  here. 

But  in  our  opinion  there  is  no  difficulty  in  making  the 
proposed  amendment  in  the  circuit  court,  if  that  court  shall 
see  fit,  in  its  discretion,  to  allow  it  to  be  done.  The  cause 
may  then  be  reheard  there,  and  upon  the  decree  newly  ren- 
dered an  appeal  can  then  be  taken  to  this  court,  or  a  decree 
may  be  there  rendered  by  consent  of  the  parties,  in  order  to 
enter  the  cause  without  an}^  delay  to  this  court.  This  court, 
in  rendering  its  former  decree,  had  no  authority,  not  having 
any  jurisdiction  but  to  reverse  for  the  want  of  jurisdiction  of 
the  circuit  court,  to  send  the  cause  back  for  further  proceed- 


FITZPATKICK    AND    OTHKRS  V.    DOMINGO.  281 

ings,  with  liberty  to  amend  the  bilh  But  (he  mandate  was 
not  understood  by  us  to  apply,  except  to  the  record  in  its  then 
state;  and  we  entertain  no  doubt  that,  notwithstanding  any- 
thing in  the  former  decree  of  reversal,  it  is  entirely  competent 
for  the  circuit  court,  in  their  discretion,  to  allow  the  amend- 
ment now  })roposed  to  be  made,  and  to  reinstate  the  cause  in 
that  court.  But  we  have  no  authority  in  the  matter.  The 
motion  is,  therefore,  overruled. 

(; ASTER  ('.  WOOD. 
(Circuit  Court  for  Pennsylvania  :  1  Baldwin,  2S9-291.     1831.) 

Statement  of  Facts. — This  was  an  application  to  file  an 
additional  answer,  upon  affidavit  that  tlie  respondent  had 
since  the  former  answei'  acquired  further  information. 

Opinion  of  the  Court. 

Applications  to  amend  an  answer  are  not  grantable  of 
course,  but  depend  on  the  discretion  of  the  court;  they  are 
viewed  more  favorably  when  made  to  refoi'm  an  answer  than 
when  made  to  take  it  off  th(3  file  and  substitute  a  different  one  ; 
the  former  is  allowed  in  many  cases,  the  latter  only  in  special 
cases,  where  the  conscience  of  the  court  is  satisfied  that  the 
purposes  of  justice  require  it.     4  Madd.,  28  ;  4  J.  C,  375,  37G. 

As  a  general  rule,  the  plaintiff  is  entitled  to  the  benefit  of 
all  the  admissions  of  the  defendant  on  oath,  and  it  must  be  a 
clear  case  where  the  ansv.er  will  be  permitted  to  be  taken  from 
the  file.  But  the  present  motion  is  merely  to  amend  and 
explain  matter  not  fully  stated  in  the  answer,  on  account  of 
the  partial  information  then  possessed  by  the  defendant,  and 
the  introduction  of  new  matter  since  come  to  his  knowledge, 
deemed  material  to  the  case.  Wo  think  it  comes  within  the 
established  rules  of  courts  of  equity,  and  therefore  allow  the 
amendments,  imposing  on  the  defendant  the  condition  of 
furnishing  the  opf)Osite  party  with  the  names  of  the  witnes.ses 
whose  depositions  he  intends  to  take. 

FITZPATRICK  AND  OTHERS  r.  DOMINGO. 
(14Fep.  Rep.  216.     1882.) 

Billings,  D.  J.  This  cause  is  submitted  on  a  demurrer  to 
a  bill  of  revivor.  The  original  bill  was  to  obtain  an  account- 
ing from  the  respondent,  Jose  Domingo,  in  behalf  of  the  next 
of  kin  of  his  deceased  wife  as  to  her  estate.    The  bill  of  revivor 


282  EQUITY    PLEADING. 

sets  out  the  original  bill,  the  pendency  and  progress  of  the 
suit,  the  death  of  the  original  respondent,  the  probate  of  his 
last  "will,  the  appointment  and  qualification  of  the  executor, 
and  then  prays  for  the  revival  of  the  suit  against  the  estate  of 
Domingo  by  bringing  in  the  executor. 

It  is  not  questioned  that  the  cause  of  the  action  originally 
commenced  against  Domingo  survives  against  his  estate;  but 
the  point  urged  is  that  under  the  laws  of  Louisiana,  in  the 
courts  of  the  state  of  Louisiana,  all  claims  against  the  estates 
of  decedents  must  be  presented  in  the  mortuary  court.  But 
the  question  is  here  one  of  federal  jurisdiction,  to  be  deter- 
mined by  the  statutes  of  the  United  States,  and  the  provisions 
"  of  these  statutes  are,"  as  Judge  Conkling,  in  his  treatise, 
page  469,  remarks,  "very  ample." 

The  Judiciary  Act  (1  St.  at  Large,  p.  90,  Sec.  31,)  provides 
that  in  case  the  cause  of  action  survives,  and  either  party  dies, 
the  court  before  whom  such  cases  may  be  depending  is  em- 
powered and  directed  to  hear  and  determine  the  same,  and  to 
render  judgment  for  or  against  the  executor  or  administrator, 
as  the  case  may  require,  and  that  such  executor  or  administra- 
tor may  be  brought  in  by  process,  and  the  court  may  render 
judgment  in  the  same  manner  as  if  he  had  a{)peared 
voluntarily. 

In  Clarke  v.  Mathewson,  12  Peters,  164,  a  bill  had  been 
filed  by  Wetmore,  who  subsequently  died.  Clarke  was  ap- 
pointed administrator,  and  filed  a  bill  of  revivor.  Both  the 
administrator  and  the  respondent  were  citizens  of  Rhode 
Island. 

The  court  held  that  both  upon  the  settled  rules  of  equity 
jurisprudence,  and  under  the  statute  above  referred  to,  "  the 
revivor  of  a  suit  in  equity  by  or  against  the  representative  of 
a  deceased  party  was  a  matter  of  right  and  a  mere  continua- 
tion of  the  original  suit."  Rule  56  in  equity  is  declarative, 
not  only  of  the  practice  of  the  court,  but  of  the  provisions  of 
the  statute.  The  statute  of  Louisiana,  in  this  respect,  operates 
only  upon  her  own  courts,  and  cannot  deprive  this  court  of  a 
jurisdiction  already  vested  and  expressly  continued  by  an  act 
of  congress.  The  demurrer  is  therefore  overruled,  with  leave 
to  answer  by  the  next  rule  da  v. 


GIANT  rOWDKll  CO.   V.   (A  I.l  I  ( tK  M  A    NIColM'l'   r(i\\|ii:K  CO         llS3 

GIANT  POWDKK  (OMPANY  r.  (A  I.l  I(  )1;M  A   NKKHMT  r()\VI)i;K 

COMPANY. 

(CiiTiiit  Ccurt  fur  (  alironiia  :   .")  FodiTal  Kcporlor.  l'.»7-2(!3.      1880.) 

Opinion  Ity  I'iki.d.  .1. 

Statkmkxt  of  Facts. — This  oa.«e  was  licard  by  nic  whilst 
holding  the  circuit  court  in  San  Francisco,  in  Ihc  month  of 
September  last,  and  was  decided  on  the  12th  of  October  fol- 
lowing. The  decision  was  against  the  com})lainant,  and  a  de- 
cree was  entered,  dismissing  the  bill.  The  complainant's 
counsel  now  })resent  to  nie  at  A\'ashington  a  p(>tition  l"or  a 
rehearing. 

The  case  was  elaborately  argued  at  the  circuit,  counsel  occu- 
pying several  days  in  the  presentation  of  their  views.  Their 
arguments  were  taken  down  by  a  short-hand  writer,  and 
printed,  thus  enabling  me  to  read  what  1  had  patiently 
listened  to  in  the  oral  discussion. 

The  question  Ijcfore  the  court  was  the  validity  of  the  re- 
issued patent  to  the  complainant.  The  main  ol)jection  urged 
to  its  validity  was  that  it  was  for  a  different  invention  from 
that  described  in  the  original  patent.  And  upon  that  point 
the  argument  Avas  full,  elaborate  and  able.  It  is  difhcult  to 
see  how  the  position  of  the  complainant  in  supi)ort  of  the 
patent  could  have  been  more  cogently  pi'csented. 

The  original  patent  was  for  a  conn)ound  of  nitro-glycerine 
with  an  inexplosive  porous  absorbent,  which  Avould  take  up 
the  nitro-glycerine,  and  render  it  safe  for  trans})ortation,  stor- 
age and  use  without  loss  of  its  explosive  jjowcr.  The  re-issued 
patent  is  for  a  com[)ound  of  niti'O-glycerine  with  any  jiorous  ab- 
sorbent, explosive  or  inex])]osive,  which  will  be  ((|uallysafe 
for  trans|)ortation,  storage  and  use  without  loss  of  cxplo.^ivt' 
pow'er.  in  other  words,  the  i-e-issued  })attnit  (lro}»s  the  limita- 
tion of  the  original,  and  seeks  to  cover  all  compounds  in  which 
niti'o-glycei-ine  is  used  in  coiniection  with  a  ])orous  absorbent, 
in  the  production  of  blasting  ])Owder,  thus  |)ractically  securing 
to  the  patentee  a  mono])oly  of  niti-o-glycerine  in  the  manuiac- 
ture  of  that  powder.  The  court  held  that  the  re-i.<su(d  patent 
was,  therefore,  more  extensive  in  its  scope  than  the  oi'iginal 
patent,  and  on  that  ground  was  imalid.  It  covered  a  dill'eri'nt 
invention. 

The  court  also  held  that  the  oi-igiiial  jjatent  was  ncithei-  in- 
valid nor  ino])erative  from  any  (h^fective  s|»ccification,  but  was 
valid  and  oj)erative  for  the  invention  desciibed  ;  and  that  this 


284  EQUITY    PJ>KAI)IX.G. 

appeared  ii[)Oii  a  comparison  of  the  two  patents,  the  I'c-issued 
patent  differing  from  the  original  only  in  the  extent  of  its 
claim:  and  that,  therefore,  the  connnissioner  exceeded  liis 
jnrisdiction  in  granting  a  re-issne  at  all,  as  well  as  on  the 
ground  that  the  re-issued  patent  was  for  a  different  invention. 
This  latter  position  was  not,  it  is  true,  discussed  in  the  oral 
argument,  but  it  is  raised  by  the  ])leadings,  and  the  attention 
of  complainant's  counsel  at  8an  Francisco  was  called  to  it,  and 
a  note  of  autljorities  on  the  ])oint  was  received  fVom  him,  em- 
bracing the  greater  part  of  those  mentioned  in  the  i)etition  for 
rehearing.  Whether  the  position  be  well  taken  or  not  cannot 
affect  the  decision  of  the  case,  if  the  re-issued  patent  cover  a 
different  invention  from  that  described  in  the  original  patent. 

But  the  petition  cannot  now  be  considered  by  me  at  Wash- 
ington. It  is  not  an  e.c  parte  proceeding  ;  it  can  only  be  ))re- 
sented  on  notice,  and  can  only  be  considered  after  the  other 
side  has  had  an  opportunity  to  answer  it.  The  ex  parte  pres- 
entation by  counsel  has  evidently  been  made  from  a  failure  to 
distinguish  between  an  ap[)lication  fVir  rehearing  after  the  de- 
cision of  an  appellate  tribunal,  and  an  application  for  a  re- 
hearing in  a  court  of  original  jurisdiction  after  entry  of  a  final 
decree.  The  distinction  between  aj)plications  for  rehearing  in 
the  two  cases  is  pointed  out  by  Chief  Justice  Taney  in  Brown 
V.  Aspden,  14  How.,  26:  "By  the  established  rules  of  chan- 
cery practice,"  said  the  chief  justice,  ''  a  rehearing,  in  the  same 
sense  in  Avhich  that  terra  is  used  in  proceedings  in  equity, 
cannot  be  allowed  after  the  decree  is  enrolled.  If  the  party 
desires  it,  it  must  be  applied  for  before  the  enrollment.  l\ut 
no  appeal  will  lie  to  the  proper  appellate  tribunal  until  after 
it  is  enrolled,  either  actually  or  by  construction  of  law  ;  and, 
consequently,  the  time  for  a  rehearing  must  have  gone  by  be- 
fore an  appeal  could  be  taken.  In  the  house  of  lords  in  Eng- 
land, to  which  the  appealTies  from  the  court  of  chancery,  a  re- 
hearing is  altogether  unknown.  A  i-e-argument,  indeed,  may 
be  ordered  if  the  house  desires  it  for  its  own  satisfaction.  But 
the  chancery  rules  in  relation  to  rehearings.  in  the  technical 
sense  of  the  word,  are  altogether  inapj)licable  to  the  proceed- 
ings on  the  appeal. 

"  Undoubtedly  this  court  may  and  would  call  for  a  re-argu- 
ment where  doubts  are  entertained  which  it  is  supposed  may 
be  removed  by  further  discussion  at  the  bar.  And  this  may 
be  done  after  judgment  is  entered,  piovided  the  order  for  re- 


GIANT  I'OWDKR  CO.    V.   CALl  F(  )1;N  I  A    VKIOKIT   r()\VI)i:K  Co.        'JS5 

argunieiit  i.s  entered  at  the  .'^nine  tei'ni.  lUit  tlie  rule  dt"  tlio 
court  i.s  this:  tliat  no  re-ai'guiiieiit  will  be  henid  in  any  case 
after  judgment  is  entered,  unle.'^.s  some  mcmhci-  of  tlie  court 
who  concurred  in  the  judgment  afterwards  douhts  the  correct- 
ness of  his  ojnnion  and  desires  a  further  argument  on  the  sub- 
ject. And  when  that  hapjiens,  the  court  will,  of  its  own  ac- 
cord, apj)rise  tlie  coun.'^el  of  its  wishes  and  designate  the  points 
on  which  it  desires  to  bear  them. 

"  According  to  the  practice  in  the  supreme  court,  if  the  court 
does  not,  of  its  own  motion,  desire  a  reheai'ing  of»a  case  (de- 
cided, counsel  are  at  liberty  to  submit  without  argument  a 
brief  petition  or  suggestion  of  the  points  upon  which  a  lehear- 
ing  is  desired.  If,  then,  any  judge  who  concurred  in  the  deci- 
sion thinks  proj)er  to  move  for  a  rehearing,  the  motion  is  con- 
sidered bv  the  court;  otherwise  the  petition  is  denied  of  coui\se." 
Public  Schools  r.  Wallace,  9  Wall.,  (')04. 

A  similar  coui'se  of  procedure  would  be  apj)ropriiite  in  any 
appellate  tribunal.  To  allow  an  argument  upon  such  a  ])eti- 
tion  would  lead  in  a  majority  of  cases  to  a  mere  repetition, 
with  more  or  less  fullness,  of  the  points  pi-esented  on  the  orig- 
inal hearing,  and  cause  infinite  delays  to  the  prejudice  of  other 
suitors  before  the  court. 

There  is  another  observation  to  be  made  U])on  rehearings  in 
equity  after  a  final  decree  in  courts  of  original  jui-isdiction. 
The  practice  in  this  country  and  that  which  formerly  prevailed 
in  England  are  essentially  different.  According  to  the  prac- 
tice in  the  English  courts,  a  rehearing  ])revious  to  tlu'  eni'oll- 
ment  of  the  decree,  when  the  petition  was  approved  by  the 
certificate  of  two  counsel,  was  gi-anted  almost  as  a  matter  of 
course.  Repeated  rehearings  in  the  same  cause  were  not  un- 
common, and  the  consequent  delays  and  expense  from  this 
practice  were  so  great  as  to  lead  to  the  interposition  of  ]);irlia- 
ment  for  its  correction.  The  subject  is  mentioned  Ijy  Chief 
Ju.stice  Taney  in  his  oj)inion  in  the  case  of  Howard.  There, 
when  a  case  was  decided,  memoianda  for  the  decree  were  en- 
tered in  the  minutes  of  the  court  ;  in  some  instances  the  final 
decree  was  thus  entered  ;  but  the  decree  was  not  considered 
as  strictly  a  record  until  it  was  engros.sed,  signed  and  entered 
at  length  in  the  rolls  of  the  court.  IJetween  the  time  of  the 
decision  and  the  entry  of  the  memoranda  of  the  decree,  and 
the  time  the  decree  took  a  definitive  shape  by  enrollment,  it 
was  open  to  modification  and  correction,  and  even  to  entire 


28t)  EQUITY    PLEADING. 

change.  But  when  once  enrolled  the  decree  was  not  subject 
to  change  excei)t  in  the  house  of  lords,  or  by  a  bill  of  review. 
2  Daniell's  Chancery  Practice,  1018. 

In  this  country  there  is  not,  except,  perhaps,  in  one  or  two 
states  where  the  old  forms  of  equity  practice  are  retained,  any 
such  proceeding  as  the  formal  enrollment  of  decrees.  Here, 
when  a  case  in  equity  is  decided,  a  decree  is  drawn  up  and 
signed  b}'  the  judge,  and  entered  on  the  records  of  the  court, 
with  about  the  same  formality  as  a  judgment  in  a  case  at  law. 
And  rehearings  are  then  granted,  excej)t  when  the  judge  acts 
of  his  own  motion,  only  upon  such  grounds  as  would  author- 
ize a  new  trial  in  an  action  in  law  ;  that  is,  for  newly-discov- 
ered evidence  or  errors  of  law  apparent  upon  the  record.  A.11 
the  limitations  which  control  courts  in  actions  at  law,  in  con- 
sidering allegations  of  newly-discovered  evidence  and  of  errors 
at  law,  apply  to  applications  for  rehearing  in  such  cases. 
Bentley  v.  Phelps,  3  Woodb.  &  M.,  403.  See,  also,  Dogget  v. 
Emerson,  1  Woodb.  &  M.,  1  ;  Emerson  v.  Daniels,  id.,  21  ; 
Tufts  V.  Tufts,  3  Woodb.  &  M.,  420  ;  and  also  Clapp  v.  Thax- 
ter,  7  Gray,  380. 

The  course  of  procedure  for  the  complainant,  therefore,  is  to 
file  its  petition  with  the  clerk  of  the  circuit  court  at  San  Fran- 
cisco, and  obtain  from  the  court  or  circuit  judge  an  order 
upon  tlie  defendants  to  show  cause  on  the  following  rule  day, 
or  some  other  day  mentioned,  why  its  prayer  should  not  be 
granted.  The  defendants  can  then  answer  the  petition,  and 
upon  the  petition  and  answer  the  application  can  be  heard. 
A  rehearing  should  not  be  granted  for  newly-discovered  evi- 
dence where  the  evidence  could  have  been  obtained  by  reason- 
able diligence  on  the  first  hearing,  nor  when  it  is  merely 
cumulative  to  that  previously  received,  nor  when,  if  presented, 
it  would  not  have  changed  the  result.  And  as  to  errors  of 
law,  they  should  be  such  as  are  clearly  shown  by  considera- 
tions not  previously  presented.  A  new  hearing  should  not  be 
had  simply  to  allow  a  rehash  of  old  arguments.  The  proper 
remedy  for  errors  of  the  court  on  points  argued  in  the  first 
hearing  is  to  be  sought  by  a])peal,  when  the  decree  is  one 
whicli  can  be  reviewed  by  an  appellate  tribunal.  See  Tufts  v. 
Tufts,  supra. 

The  petition,  therefore,  cannot  be  heard  by  me  ex  parte  at 
AVashington.  The  complainant  must  pursue  the  regular 
course  of  procedure,  and  give  notice  to  the  opposite  party.     If 


GIANT  roWDKR   CO.    V.   TA  1,1 1'(  >1{N  1  A    NKioUII'   !'( »\Vl)i:i;   I'O.        I'S? 

the  |>c'titi()n  \)c  filrd  duiiiiii,'  tlir  (niii,  the  t'nurt  will  retain 
jurisdiction  over  the  case,  and  may  suhseiiuently  decide  u]ton 
the  application.  The  eiglity-eighth  rule  in  equity  a])i)liesonly 
where  no  petition  is  presented  during  the  tern). 

As  the  circuit  court  in  San  Franci.'^co  will  he  held  h}'  the 
circuit  judge  in  my  absence,  he  will  direct  its  clerk  to  forward 
the  petition  and  answer  to  me  at  Washington,  accompanied 
with  sucli  briefs  as  counsel  may  lile  within  a  reasonable  time 
to  be  allowed  by  the  court.  The  application  will  then  be 
taken  up  and  disposed  of,  and  my  judgment  sent  to  the  circuit 
court  and  there  entered.  Where  cases  have  been  heai'd  by 
the  circuit  judge  sitting  alone,  I  do  not  myself  hear  applica- 
tions in  them  for  a  rehearing,  or  motions  for  a  new  trial,  ex- 
cept by  his  request.  This  consideration  to  the  different  judges 
composing  the  court  is  essential  to  the  harmonious  adminis- 
tration of  justice  therein.  As  observed  by  me  in  a  case  re- 
ported in  1  Sawyer:  "The  circuit  judge  possesses  equal 
authority  with  myself  on  the  circuit,  and  it  would  lead  to 
unseemly  confiicts  if  the  rulings  of  one  judge,  u])on  a  question 
of  law,  should  be  disregarded  or  l)e  open  to  revicnv  by  the 
other  judge  in  the  same  case." 

The  petition  contains  what  purports  to  be  a  co})y  of  my 
opinion  but  it  is  a  copy  of  the  opinion  before  it  was  revised. 
The  opinion  should  not  have  been  published  until  it  had  re- 
ceived my  revision,  as  counsel  very  well  know.  In  any  peti- 
tion hereafter  filed  it  is  expected  that  a  correct  cojiy  will  ap- 
pear, if  any  one  is  given.  If  the  present  petition  is  used  the 
opinion  must  be  corrected  in  accordance  with  the  revised 
copy. 

Before  concluding  it  may  not  be  amiss  to  invite  the  atten- 
tion of  complainant's  counsel  to  the  language  of  Judge  Stor}^, 
in  the  case  of  Jenkins  v.  Eldredge,  with  resj)ect  to  the  earnest- 
ness with  with  which  counsel,  in  apjilying  for  rehearings, 
sometimes  assevei'ate  their  convictions  of  the  errors  of  the  court ; 
and  to  re})eat  what  is  there  said,  "■  that  if  any  judge  should  be 
so  unstable  in  his  views  or  so  feeble  in  his  judgment  as  to 
yield  to  them,  he  would  not  only  surrender  his  independence 
but  betray  his  duty.  However  humble  may  be  his  own  tal- 
ents, he  is  compelled  to  treat  every  oj)inion  of  counsel,  how- 
ever exalted,  which  is  not  founded  in  the  law  and  the  facts  of 
the  case,  to  be  voiceless  and  valueless."  3  Story,  803.  Noth- 
ing can  be  gained  by  strong  language  expressed  by  counsel  in 


288  EQUITY    PLEADING. 

presenting  the  petition  as  to  the  su[)posed  errors  of  tlie  court, 
nor  by  the  statement  as  to  what  may  have  been  said  of  the 
decision  by  other  counsel,  who  have  neither  examined,  studied 
nor  understood  the  case. 


CHAPTER  X. 

PREPARATION    FOR    IIEARIN(i SUBMISSION   OF   CAUSE DECREE. 

llnle  S(i. 

In  drawiiio-  up  decrees  and  orders,  neither  tlie  bill,  nor  an- 
swer, nor  other  pleadings,  nor  any  part  thereof,  nor  the  report 
of  any  master,  nor  any  other  prior  proceeding,  shall  be  recited 
or  stated  in  the  decree  or  order ;  but  the  decree  and  order 
shall  begin,  in  substance,  as  follows  :  "  This  cause  came  on  to 
be  heard  (or  to  be  further  heard,  as  the  case  may  be)  at  this 
term,  and  was  argued  by  counsel ;  and  thereupon,  upon  con- 
sideration thereof,  it  was  ordered,  adjudged  and  decreed  as 
follows,  viz.:  "  [Here  insert  the  decree  or  order.] 

liufe  i)2. 

Ordered,  That  in  suits  in  equity  for  the  foreclosure  of  mort- 
gages in  the  circuit  courts  of  the  United  States,  or  in  any 
court  of  the  Territories  having  jurisdiction  of  the  same,  a  de- 
cree may  be  rendered  for  any  balance  that  may  be  found  due 
to  the  coinplainant  over  and  above  the  j)roceeds  of  the  sale  or 
sales,  and  execution  may  issue  for  the  collection  of  the  same, 
as  is  provided  in  the  eighth  rule  of  this  court  regulating  the 
equity  practice,  where  the  decree  is  solely  for  the  payment  of 
money. 

Biile  75. 

Every  decree  for  an  account  of  the  personal  estate  of  a  tes- 
tator or  intestate  shall  contain  a  direction  to  the  master  to 
whom  it  is  referred  to  take  the  same  to  in(|uiro  and  state  to 
the  court  what  parts,  if  any,  of  such  })ersonal  estate  are  out- 
standing or  undisposed  of,  unless  the  court  shall  otherwise 
direct. 

19  (  289  ) 


200  EQUITY    PLEADING. 

Rule  85. 

Clerical  mistakes  in  decrees  or  decretal  orders,  or  errors  aris- 
ing from  any  accidental  slip  or  omission,  may,  at  any  time 
before  an  actual  enrollment  thereof,  be  corrected  by  order  of 
the  court  or  a  judge  thereof,  upon  petition,  without  the  form 
•or  expense  of  a  rehearing. 

FOKGAY  V.  CONRAD. 
(6  Howard,  201-206.     1847.) 

Opinion  by  Taney,  C.  J. 

Statement  of  Facts. — A  motion  has  been  made  to  dismiss 
this  appeal  on  the  ground  that  the  decree  in  the  circuit  court 
is  not  a  final  decree  within  the  meaning  of  the  acts  of  congress 
of  1789  and  1803. 

The  bill  was  filed  by  the  appellee,  as  the  assignee  in  bank- 
ruptcy of  a  certain  Thomas  Banks,  in  the  circuit  court  of  the 
United  States  for  the  district  of  Louisiana,  against  the  appel- 
lants, and  Banks,  the  bankrupt,  and  three  other  defendants. 
The  object  of  the  bill  was  to  set  aside  sundry  deeds  made  by 
Banks  for  lands  and  slaves,  which  the  complainant  charged  to 
be  fraudulent,  and  for  an  account  of  the  rents  and  profits  of 
the  property  so  conveyed  ;  and  also  for  an  account  of  sundry 
sums  of  money  which  he  alleged  had  been  received  by  one 
or  more  of  the  defendants,  as  specifically  charged  in  the  bill, 
which  belonged  to  the  bankrupt's  estate  at  the  time  of  his 
bankruptcy.  The  case  was  proceeded  in  until  it  came  on  for 
hearing,  when  the  court  passed  a  decree  declaring  sundry 
deeds  therein  mentioned  to  be  fraudulent  and  void,  and 
directing  the  lands  and  slaves  therein  mentioned  to  be  de- 
livered up  to  the  complainant,  and  also  directing  one  of  the 
defendants  named  in  the  decree  to  pay  him  $11,000,  received 
from  tlie  bankrupt  in  fraud  of  his  creditors,  and  "  that  the 
complainant  do  have  execution  for  the  several  matters  afore- 
said in  conformity  with  law  and  the  practice  prescribed  by 
the  rules  of  the  supreme  court  of  the  United  States."  The 
decree  then  directs  that  the  master  take  an  account  of  the 
profits  of  the  lands  and  slaves  ordered  to  be  delivered  up,  from 
the  time  of  the  filing  the  bill  until  the  property  was  delivered, 
or  to  the  date  of  the  master's  report,  and  also  an  account  of 
the  money  and  notes  received  by  one  of  the  defendants  (who 


FORGAY    V.    CONRAD.  291 

has  not  apj)calcd)  in  fVaiul  of  (lie  creditors  of  the  haiikriij)t, 
and  concludes  in  the  followintv  words:  "And  so  much  of  the 
said  bill  as  contains  or  relates  to  matters  hereby  I'eferrcd  to 
the  master  for  a  report  is  retained  Ibi-  lurther  decree  in  the 
premises  ;  and  so  much  of  the  said  bill  as  is  not  now  nor  has 
been  heretofore  adjudged  and  decreed  upon,  and  which  is 
not  above  retained  for  the  })Ui"{)Oses  aforesaid,  be  dismissed 
without  prejudice,  and  that  the  said  defenchmts  do  pay  the 
costs."  Among  the  deeds  set  aside  as  fraudulent  is  one  from 
the  bankrui)t  to  Ann  Fogarty,  otherwise  called  Ann  Wells,  for 
two  lots  in  the  city  of  New  Orleans,  and  sunth'y  slaves,  which 
she  afterwards  conveyed  to  Forgay,  the  other  appellant.  IJotli 
of  these  deeds  are  dechired  null  and  void,  and  the  lots,  with 
the  improvements  thereon,  and  the  negroes,  directed  to  be 
delivered  to  the  complainant  for  the  benefit  of  the  bankrupt's 
creditors.  This  ])art  of  the  decree  is  one  of  the  matters  of 
which  the  complainant  was  to  have  execution.  But  the  ac- 
count of  the  rents  and  profits  6f  this  property  i.s,  like  other 
similar  accounts,  referred  to  the  master  and  reserved  for  fur- 
ther decree. 

The  appeal  is  taken  by  Samuel  L.  Forgay  and  Ann  Fo- 
garty, otherwise  called  Ann  Wells;  and  they  alone  are  inter- 
ested in  that  portion  of  the  decree  last  above  mentioned. 
The  bankrupt  and  the  three  other  defendants  have  not  ap- 
pealed. These  three  defendants  claimed  other  property,  whi(di 
had  been  conveyed  to  them  at  different  times,  and  by  sei)arate 
conveyances,  as  mentioned  in  the  proceedings.  And  it  was 
not,  therefore,  necessarv,  that  thev  should  join  in  this  a})peal. 
Todd  V.  Daniel,  IG  Pet";,  523. 

The  question  upon  the  motion  to  dismiss  is  whether  this  is 
a  final  decree  within  the  meaning  of  the  acts  of  congress. 
Undoubtedly  it  is  not  final  in  the  strict,  technical  sense  of 
that  term.  But  this  court  has  not  heretofore  understood  the 
words  "final  deci'ee  "  in  this  strict  and  technical  sense,  but 
has  given  to  them  a  more  liberal,  and,  as  w'e  think,  a  more 
reasonable  construction,  and  one  more  consonant  to  the  inten- 
tion of  the  legislature.  In  the  case  of  Whiting  u  The  Bank 
of  the  United  States,  13  Pet.,  15,  it  was  held  that  a  decree  of 
foreclosure  and  sale  of  mortgaged  premises  was  a  final  decree, 
and  the  defendant  entitled  to  his  appeal  without  waiting  for 
the  return  and  confirmation  of  the  sale  by  a  decretal  order. 
And  this  decision  is  placed  by  the  court  u{)on  the  ground  that 


292  EQUITY    PLEADING. 

the  decree  of  foreclosure  and  sale  was  final  upon  the  merits, 
and  the  ulterior  proceedings  but  a  mode  of  executing  the 
original  decree.  Tlie  same  rule  of  construction  was  acted  on 
in  the  case  of  Michoud  and  others  v.  Girod  and  others,  4  How., 
503.  The  case  before  us  is  a  stronger  one  for  an  appeal  than 
the  case  last  mentioned.  For  here  the  decree  not  only  decides 
the  title  to  the  property  in  dispute,  and  annuls  the  deeds  under 
which  the  defendants  claim,  but  also  directs  the  property  in 
dispute  to  be  delivered  to  the  complainant  and  awards  execu- 
tion. And  according  to  the  last  paragraph  in  the  decree,  the 
bill  is  retained  merely  for  the  purpose  of  adjusting  the 
accounts  referred  to  the  master.  In  all  other  respects,  the 
whole  of  the  matters  brought  into  controversy  by  the  bill  are 
finally  disposed  of  as  to  all  of  the  defendants,  and  the  bill  as 
to  tliem  is  no  longer  pending  before  the  court,  and  the  decree 
which  it  passed  could  not  liave  been  afterwards  reconsidered 
or  modified  in  relation  to  the  matters  decided,  except  upon  a 
petition  for  a  rehearing,  within  the  time  prescribed  b}'-  the 
rules  of  this  court  regulating  proceedings  in  equity  in  the  cir- 
cuit courts.  If  these  appellants,  therefore,  must  wait  until 
the  accounts  are  reported  by  the  master  and  confirmed  by  the 
court,  they  will  be  subjected  to  irreparable  injury.  For  the 
lands  and  slaves  which  they  claim  will  be  taken  out  of  their 
posse.ssion  and  sold,  and  the  proceeds  distributed  among  the 
creditors  of  the  bankrupt,  before  they  can  have  an  opportunity 
of  being  heard  in  this  court  in  defense  of  their  rights.  We 
think,  upon  sound  principles  of  construction,  as  well  as  upon 
the  authority  of  the  cases  referred  to,  that  such  is  not  the 
meaning  of  the  acts  of  congress.  And  when  the  decree  decides 
the  right  to  the  property  in  contest,  and  directs  it  to  be  deliv- 
ered up  by  the  defendant  to  the  complainant,  or  directs  it  to 
be  sold,  or  directs  the  defendant  to  pay  a  certain  sum  of 
money  to  the  complainant,  and  the  com|»lainant  is  entitled  to 
have  such  decree  carried  immediately  into  execution,  the 
decree  must  be  regarded  as  a  final  one  to  that  extent,  and 
authorizes  an  appeal  to  this  court,  although  so  much  of  the 
bill  is  retained  in  the  circuit  court  as  is  necessary  for  the  pur- 
pose of  adjusting  by  a  furtlier  decree  the  accounts  between  the 
parties  pursuant  to  the  decree  passed. 

This  rule,  of  course,  does  not  extend  to  cases  where  money 
is  directed  to  be  paid  into  court,  or  property  to  be  delivered  to 
a  receiver,  or  property  held  in  trust  to  be  delivered  to  a  new 


FOKCiAY    V.    CONKAI).  li'.l.'5 

trustee  appointed  by  tho  court,  or  to  cases  of  a  like  description. 
Orders  of  that  kind  are  lre(|uently  and  necessarily  made  in  the 
progress  of  a  cause.  Ikit  they  are  interlocutory  only,  and  in- 
tended to  preserve  the  subject  matter  in  dispute  from  waste  or 
dila})idation,  and  to  keep  it  within  the  control  of  (he  court 
until  the  rights  of  the  parties  concerned  can  be  adjudicated  by 
a  final  decree.  The  case  before  us,  however,  comes  within  the 
rule  above  stated,  and  the  motion  to  dismiss  is  therefore  over- 
ruled. We,  however,  feel  it  our  duty  to  say  that  we  cannot 
approve  of  the  manner  in  which  this  case  has  l)een  dis{)osed  of 
by  the  decree.  In  limiting  the  right  of  ajipcnil  to  final  decrees, 
it  was  obviously  the  object  of  the  law  to  save  the  unnecesary 
expense  and  delay  of  repeated  appeals  in  the  same  suit,  and  to 
have  the  whole  case  and  every  matter  in  controversy  in  it  de- 
cided in  a  single  appeal.  In  this  respect  the  practice  of  the 
United  States  chancery  courts  diilers  from  the  English  prac- 
tice. For  appeals  to  the  house  of  lords  may  be  taken  from  an 
interlocutor}'  order  of  the  chancellor,  which  decides  a  right  of 
property  in  dispute;  and  therefore  there  is  no  irre[)arable 
injury  to  the  party  by  ordering  his  deed  to  be  canceled,  or  the 
property  he  holds  to  be  delivered  up,  because  he  may  imme- 
diately appeal;  and  the  execution  of  the  order  is  suspended 
until  the  decision  of  the  appellate  court.  But  the  case  is 
otherwise  in  the  courts  of  the  United  States,  where  the  right 
to  ai)peal  is  b}^  law  limited  to  final  decrees.  And  if,  by  an 
interlocutory  order  or  decree,  he  is  required  to  deliver  up  prop- 
erty which  he  claims,  or  to  pay  money  which  he  denies  to  be 
due,  and  the  order  immediately  carried  into  execution  by  the 
circuit  court,  his  right  of  ap})eal  is  of  very  little  value  to  him, 
and  he  may  be  ruined  before  he  is  permitted  to  avail  himself 
of  the  right.  It  is  exceedingly  important,  therefore,  that  the 
circuit  courts  of  the  United  States,  in  framing  their  interlocu- 
tory orders,  and  in  carrying  them  into  execution,  should  kce|'. 
in  view  the  difference  l)etween  the  right  of  a[)})eal  as  ])racticfd 
in  the  English  chancery  jurisdiction,  and  as  restricted  by  the 
act  of  congress,  and  abstain  from  changing  unnecessarily  the 
possession  of  property  or  compelling  the  payment  of  money  by 
an  interlocutoiy  order. 

('a.ses,  no  doubt,  sometimes  arise  wlici'c  the  jxii'jxiscs  of  jus- 
tice require  that  the  property  in  controversy  should  be  placed 
in  the  hands  of  a  receiver,  or  a  trustee  be  changed,  or  money 
be  paid  into  court.     But  orders  of  this  description  stand  upon 


294  EQUITY    PLEADING. 

very  different  princif)les  from  the  interlocutory  orders  of 
which  we  are  speaking.  In  the  case  before  us,  ifbr  example, 
it  would  certainly  have  been  proper,  and  entirely  consistent 
with  chancery  practice,  for  the  circuit  court  to  have  an- 
nounced, in  an  interlocutory  order  or  decree,  the  opinion  it  had 
formed  as  to  the  rights  of  the  parties,  and  the  decree  it  would 
finally  pronounce  upon  the  titles  and  conveyances  in  contest. 
But  there  could  be  no  necessity  for  passing  immediately  a 
final  decree,  annulling  the  conveyances,  and  ordering  the 
property  to  be  delivered  to  the  assignee  of  the  bankrupt.  The 
decree  upon  these  matters  might  and  ought  to  have  awaited 
the  master's  report ;  and  when  the  accounts  were  before  the 
court,  then  every  matter  in  dispute  might  have  been  adjudi- 
cated in  one  final  decree  ;  and  if  either  party  thought  himself 
aggiieved,  the  whole  matter  would  be  brought  here,  and 
decided  in  one  appeal,  and  the  object  and  policy  of  the  acts  of 
congi'ess  upon  this  subject  carried  into  effect.  These  remarks 
are  not  made  for  the  purpose  of  censuring  the  learned  judge 
by  whom  this  decree  was  pronounced,  but  in  order  to  call 
the  attention  of  the  circuit  courts  to  an  inconvenient  practice 
into  which  some  of  them  have  sometimes  fallen,  and  which  is 
regarded  by  this  court  as  altogether  inconsistent  with  the 
object  and  policy  of  the  acts  of  congress  in  relation  to  appeals, 
and  at  the  same  time  needlessly  burdensome  and  expensive  to 
the  parties  concerned,  and  calculated,  by  successive  appeals, 
to  produce  great  and  unreasonable  delays  in  suits  in  chancer}'. 
For  it  may  well  hap|)en  that,  when  the  accounts  are  taken 
and  reported  by  the  master,  this  case  may  again  come  here 
upon  exceptions  to  his  report,  allowed  or  disallowed  by  the 
circuit  court,  and  thus  two  appeals  made  necessary,  when  the 
matters  in  dispute  could  more  conveniently  and  speedily,  and 
with  less  expense,  have  been  decided  in  one. 

EAILKOAD  COMPANY  v.  SWASEY. 
(23  Wallace,  405-411.     1874.) 

Appeal  from  U.  S.  Circuit  Court,  Eastern  District  of  North 
Carolina. 

Statement  of  Facts. — The  decree  in  this  case  was  to  the 
effect  that  certain  shares  of  stock  in  the  North  Carolina  Rail- 
road Company  belonging  to  the  state  of  North  Carolina,  were 
pledged  as  security  for  certain  certificates  of  debt,  and  that  the 


RAILROAD    COMPANY    V.    SWASKY.  '^lo 

plaintiff  and  those  he  represented  were  cntitlod  to  have  the 
stock  sold  to  pay  past-due  cou])oiis.  It  also  ordered  that  the 
commissioner  take  an  account  as  to  interest  due  and  to  be- 
come due,  the  proportion  of  stock  ap])lied  to  the  payment  of 
interest,  and  that  unless  the  state  shall  have  made  |)i'ovision 
for  the  payment  of  such  interest  by  a  certain  day,  the  stock  be 
sold. 

Opinion  by  Waitk,  C.  J. 

An  appeal  may  be  taken  from  a  decree  of  foreclosure  and 
sale  when  the  rights  of  the  parties  have  all  been  settled  and 
nothing  remains  to  be  done  by  the  court  but  to  make  the  sale 
and  pay  out  the  proceeds.  This  has  long  been  settled.  Ray  v. 
Law,  3  Cranch,  179  ;  Whiting  v.  Bank  of  the  United  States,  13 
Pet.,  15.  The  sale  in  such  a  case  is  the  execution  of  the  de- 
cree. By  means  of  it  the  rights  of  the  parties  are  settled  and 
enforced.  But  to  justify  such  a  sale  without  consent,  the 
amount  due  upon  the  debt  must  be  determined  and  the  prop- 
erty to  be  sold  ascertained  and  defined.  Until  this  is  done  the 
rights  of  the  parties  are  not  all  settled.  Final  process  for  the 
collection  of  money  cannot  issue  until  the  amount  to  be  paid 
or  collected  by  the  process,  if  not  paid,  has  been  adjudged. 
So,  too,  process  for  the  sale  of  specific  property  cannot  issue 
until  the  property  to  be  sold  has  been  judicially  identified. 
Such  adjudications  require  the  action  of  the  court.  A  refer- 
ence to  a  master  to  ascertain  and  report  the  facts  is  not  suffi- 
cient. A  master's  report  settles  no  rights.  Its  office  is  to  pre- 
sent the  case  to  the  court  in  such  a  manner  that  intelligent 
action  may  be  there  had,  and  it  is  this  action  by  the  court,  not 
the  report,  that  finally  determines  the  rights  of  the  parties. 

With  these  well-settled  principles  as  our  guide,  it  is  easy  to 
see  that  the  decree  here  appealed  from  is  not  final.  The 
amount  of  the  debt  wliicli  the  state  must  pa}^  in  order  to  stop 
the  sale  has  not  been  determined,  neitlier  has  it  been  deter- 
mined what  amount  of  stock  may  be  sold  if  the  debt  is  not 
paid.  In  each  of  these  questions  the  state  has  a  direct  inter- 
est, and  through  its  representatives  in  court  has  the  I'ight  to 
be  heard.  They  must  be  settled  before  the  litigation  can  be 
said  to  be  at  an  end.  Tiie  amount  of  the  debt  and  the  pro- 
portion of  stock  applicable  to  its  payment  are,  therefore,  still 
open  for  future  adjudication  between  the  parties.  Thus  far 
the  court  has  done  no  more  than  declare  that  for  the  security 
of  the  payment  of  so  much  as  is  due,  the  plaintilf  and  those 


296  EQUITY    PLEADING. 

he  represents  have  a  lieu  upon  their  eciuitable  proportion  of 
the  stock,  and  that  the  lien  may  be  enforced  by  sale,  if  pay- 
ment of  the  debt  is  not  made.  It  has  also  declared  its  de- 
termination to  order  a  sale,  if  payment  of  the  debt  is  not 
made  or  satisfactorily  provided  for  by  April  1,  1875.  In 
order  that  proper  action  may  be  had  when  this  time  arrives, 
the  master  has  been  directed  to  state  the  account  of  the 
indebtedness  to  the  i)laintitf  and  those  he  represents,  and 
of  their  proportion  of  securities  pledged  by  the  state.  In 
this,  as  it  seems  to  us,  the  court  has  acted  upon  the  sugges- 
tion in  Forgay  v.  Conrad,  and  by  an  interlocutory  order  an- 
nounced the  opinion  it  had  formed  as  to  the  rights  of  the 
parties  and  the  principles  of  the  decree  it  would  finally  ren- 
der, leaving  the  entry  of  the  final  decree  in  form  to  be  made 
when  the  amount  due  has  been  ascertained  and  an  apportion- 
ment of  the  stock  made.  In  this  way  the  rights  of  all  i)arties 
can  be  protected  and  no  injustice  done. 

In  this  connection  it  may  not  be  improper  to  call  the  atten- 
tion of  the  circuit  courts  to  wliat  was  said  by  Chief  Justice 
Taney  in  Forgay  v.  Conrad,  as  to  tlie  care  which  ought  to  be 
exercised  in  the  preparation  of  decrees  of  this  character. 
Much  time  of  this  court  and  expense  of  litigants  will  be  saved 
if  more  attention  is  given  to  the  form  of  decrees  when  entered. 


CHAPTEK  XI. 

PRELIMINARY    INJUNCTIONS    AND    RESTRAINING    ORDERS. 

liule  r>5. 

Whenever  an  injunction  is  asked  for  by  the  bill  to  stay  pi'o- 
-ceedings  at  law,  if  the  defendant  do  not  enter  his  ai)pearanoe 
and  plead,  demur,  or  answer  to  the  same  within  the  time  pre- 
scribed therefor  by  these  rules,  the  plaintiff  shall  be  entitled  as 
of  course,  upon  motion,  without  notice,  to  such  injunction. 
But  special  injunctions  shall  be  grantable  only  u})on  due 
notice  to  the  other  party  by  the  court  in  term,  or  by  a  judge 
thereof  in  vacation,  after  a  hearing,  which  may  be  ex  parte,  if 
the  adverse  party  does  not  appear  at  the  time  and  i»lace 
ordered.  In  every  case  where  an  injunction — either  the  com- 
mon injunction  or  a  special  injunction — is  awarded  in  vaca- 
tion, it  shall,  unless  previously  dissolved  by  the  judge  granting 
the  same,  continue  until  the  next  term  of  the  court,  or  until  it 
is  dissolved  by  some  other  order  of  tlie  court. 

p:wing  v.  blight. 

(Circuit  Court  for  Pennsylvania  :  3  AVallace.  Jr.,  139,  140.     188o. ) 

Statement  of  Facts. — During  the  pendency  of  a  ])lea  to 
the  jurisdiction  an  application  was  made  for  an  injunction  and 
a  receiver. 

Opinion  by  (Jkikr,  .J. 

I'he  ])endency  of  a  plea  to  the  jurisdiction  of  the  court 
necessarily  precludes  all  further  action  of  the  court  till  it  is 
decided.  This  rule  of  practice  is  founded  on  reason  as  well  as 
fortified  by  authority.      i:i  Yes.,  104. 

While  the  jurisdiction  oi'  the  court  or  the  ecjuily  of  the  bill 
is  in  doubt  by  the  i)en(lency  of  a  plea  or  denuirrer,  it  would 
be  highly  improper  for  the  court  to  interfere  by  the  exercise  of 
such  high  powers  over  men's  property. 

(  297  ) 


298  EQUITY    PLKADING. 

The  court  have  it  nlways  in  their  power  to  guard  against 
the  abuse  of  dilatory  pleas.  If  irremediable  mischief  should 
impend,  which  it  is  absolutely  necessary  to  meet  with  prompt- 
ness, or  if  there  be  any  just  suspicion  that  the  plea  or  demur- 
rer is  merely  intended  for  delay,  the  court  will  order  an 
immediate  hearing  or  trial  of  the  plea. 

If  an  issue  be  desired  to  try  the  plea  of  jurisdiction  in  this 
case  it  will  be  ordered,  or  any  other  rule  which  com{)lainant 
may  desire,  for  the  purpose  of  expediting  the  final  hearing  in 
case  the  jurisdiction  should  be  found  to  exist. 

McCAULEY  r.  KELLOG(i. 
(Circuit  Court  for  Louisiana:  2  Woods,  lo-23,     1873.) 

Statement  of  Facts. — IJill  in  equity  heard  on  motion  for 
preliminary  injunction. 

The  bill  states  that  the  complainant  is  the  holderof  a  num- 
ber of  bonds  of  the  state  of  Louisiana.  The  prayer  of  the  bill 
is  that  the  defendants,  w'ho  are  the  governor  and  other  state 
officers,  be  restrained  from  obeying  the  so-called  funding  bill, 
an  act  passed  and  approved  January  24,  1874,  the  effect  of 
which,  it  is  alleged,  would  be  to  repudiate  the  contracts  made 
by  the  state  with  complainant  and  other  creditors,  and  that 
they  be  decreed  to  specifically  perform  the  contracts  made  by 
the  state  with  the  complainant.  Further  facts  appear  in  the 
opinion  of  the  court. 

Opinion  by  Woods,  J. 

It  is  obvious  to  remark  that  there  are  insuperable  obections 
to  so  much  of  the  prayer  for  relief  as  asks  that  the  defendants 
may  be  decreed  to  comply  with  and  specifically  perform  the 
contracts  of  the  state  by  estimating  and  collecting  the  interest 
and  .sinking  fund  tax,  and  api)lying  it  to  the  payment  of  the 
principal  and  interest  of  the  bonds.  The  objection  is  that  if 
there  is  a  remedy  at  all  it  is  a  remedy  at  law,  namely,  by  the 
issuance  of  the  writ  of  mandamus.  If  this  suit  were  brought 
against  a  municipal  corporation  and  its  officers  to  compel  the 
collection  of  a  tax  to  pay  the  interest  on  its  bonds,  the  plain, 
adecjuate  and  complete  remedy  would  be  the  legal  writ  of 
mandamus.  It  is  true  that  before  the  writ  could  issue  the 
bondholders  must  have  recovered  a  judgment  at  law  on  their 
bonds.  Bath  County  v.  Amy,  13  Wall.,  247  ;  Graham  v.  Nor- 
ton, 15  id.,  427. 


MCCAULEY    V.     KELLOGG.  299 

It  may  be  replied  to  this  that  the  bondholders  cannot  lay 
the  necessary  foundatit)n  for  the  writ  of  viandaDinti  in  the 
United  States  courts,  because  tiiey  are 'prohibited  from  suinj]^ 
the  state  by  the  eleventh  amendment  to  the  constitution  of 
the  United  States.  But  this  fact  may  prove  that  there  is  no 
remedy  for  the  complainants  in  the  United  States  courts.  It 
certaiidy  does  not  follow  that  because  there  are  obstacles  to 
the  adoi)tion  of  the  plain  legal  remedy  therefore  the  remedy 
is  in  equity.  It  might  as  well  be  claimed  th^t  becau.se  the 
bondholder  could  not  go  into  a  coui't  of  law  and  secure  a 
judgment  against  the  state  upon  his  bonds  he  might  therefore 
go  into  equity  and  seek  a  decree  against  the  othcers  of  the 
state  for  the  amount  due  on  his  bonds. 

When  the  eleventh  amendment  to  the  constitution  declares 
"  that  the  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  at  law  or  in  ecjuity  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  state,  or  subjects  of  any  foreign  state,"  the 
purpose  is  clear  to  exempt  states  from  suits  upon  their  con- 
tracts, either  at  law  or  in  equity  ;  and  the  fact  that  this 
amendment  interposes  an  obstacle  to  a  suit  at  law  against  a 
state  does  not  give  a  court  of  equity  jurisdiction  to  enforce  the 
same  contract  on  the  pretext  that  there  is  no  remedy  at  law. 
Suits  in  both  forums  against  a  state  are  prohibited. 

It  is  evident,  therefore,  that  should  this  bill  come  on  for 
final  hearing  the  decree  prayed  for  could  not  be  granted.  We 
may,  however,  consider  the  bill  as  one  for  injunction  only,  and 
the  (question  now  presented  is.  Can  and  ought  the  court  to 
allow  the  injunction  to  go  as  prayed  for? 

It  is  claimed  by  the  bill  and  conceded  by  counsel  for  de- 
fendants that  the  bonds  of  the  state  of  Louisiana  held  by 
the  complainants  are  contracts,  that  the  laws  under  which 
these  bonds  were  issued,  and  which  provide  for  the  levy  and 
collection  of  taxes  to  pay  the  interest  and  reduce  the  ])rincipal, 
and  which  declared  that  the  same  should  be  annually  con- 
tinued until  the  principal  and  interest  of  said  bonds  were  fully 
paid, — that  these  provisions  of  law  entered  into  and  formed  a 
part  of  the  contract  between  the  .state  and  the  bondholder  just 
as  completely  as  if  the  terms  themselves  were  inserted  in  the 
body  of  the  bonds.  The  state  has,  therefore,  contracted  that, 
at  a  certain  date  named  in  the  bonds,  she  will  pay  the 
principal  ;  that  in  the  meantime  she  will  pay  the  interest  semi- 


300  EQUITY    PLEADING. 

annually  to  the  holder  of  the  bonds,  and,  as  an  assurance  that 
this  part  of  her  contract  will  be  performed,  she  promises  fur- 
ther that  she  will  levy  and  collect  an  annual  tax  to  make  these 
payments,  and  that  the  revenue  raised  by  this  tax  shall  be  set 
apart  for  the  purpose  of  paying  said  interest  and  principal. 

It  is  conceded  that  the  state  has  made  this  contract  with  the 
complainant  in  this  case.  Now,  to  what  end  is  the  injunc- 
tion sought  in  this  case?  Is  it  to  compel  the  officers  of  the 
state  to  execute  the  contracts  of  the  state  by  estimating,  levy- 
ing, collecting  and  applying  to  the  payment  of  the  bonds  the 
tax  originally  provided  by  law  for  the  payment  of  the  interest 
and  the  redemption  of  the  principal  ?  It  is  true  the  prayer  for 
injunction  is  that  the  officers  of  the  state  may  be  restrained 
from  hindering  or  delaying  the  estimate,  levy  and  collection 
of  that  tax,  etc.  But  as  the  defendants  are  the  officers  whose 
duty  it  is  to  estimate,  levy  and  collect,  it  is  clear  that  such  an 
injunction  from  this  court  would  be  mandatory  and  compel 
the  performance  of  the  affirmative  acts. 

The  first  question  presented  by  the  prayer  for  injunction  is : 
Can  the  officers  of  the  state  be  compelled  by  an  injunction  to 
do  an  affirmative  act?  The  complainant  claims  that  the  fund- 
ing bill  and  the  act  of  March  14, 1874,  which  in  effect  prohibit 
the  collection  of  taxes  for  the  payment  of  the  principal  and 
interest  of  the  outstanding  bonds  of  the  state,  are  unconstitu- 
tional, and  therefore  void.  If  this  be  conceded,  then  the  case 
is  in  the  same  plight  as  if  the  acts  just  named  had  never  been 
passed,  and  us  if  the  officers  of  the  state,  without  pretense  of 
warrant  of  law,  were  refusing  to  levy  and  collect  the  taxes 
whicli  the  state  had  agreed  should  be  levied  and  collected  and 
applied  to  the  payment  of  these  bonds.  Has  this  court  the 
power  to  compel  them  by  mandatory  injunction  to  do  an 
affirmative  act? 

The  authorities  are  adverse.  The  case  of  Walkley  v.  City  of 
Muscatine,  0  Wall.,  483,  was  a  bill  in  equity  to  compel  the  au- 
thorities of  the  city  of  Muscatine  to  levy  a  tax  upon  the  prop- 
erty of  the  inhabitants  for  the  purpose  of  paying  the  interest 
on  certain  bonds  issued  by  the  city.  It  appeared  that  a  judg- 
ment had  been  recovered  in  the  same  court  against  the  city  for 
$7,666,  interest  due  on  the  bonds  held  by  plaintiff;  that  exe- 
cution had  been  issued  and  returned  unsatisfied,  no  property 
being  found  liable  to  execution  ;  that  the  mayor  and  aldermen 
had  been  requested  to  levy  a  tax  to  pay  the  judgment,  but  had 


MCCAULKY     V.     Ki:i.L()(iG.  301 

refused  ;  that  tln'  c-ity  autluiritics  jxisscssed  the  [)()\vcr  uikIit 
their  charter  to  levy  a  tax  t)l' one  pci-  cent,  on  the  valuation  of" 
the  city  property,  and  had  made  a  levy,  annually,  hut  had  aj)- 
propriated  the  proceeds  to  other  purposes,  and  liad  wholly  ne- 
glected to  j)ay  the  interest  upon  the  bonds.  The  hill  prayed 
that  the  mayor  and  aldermen  might  be  decreed  to  levy  the  tax 
and  appropriate  so  much  of  the  [)roceeds  as  might  he  suilicient 
to  pay  the  judgment,  interest  and  costs. 

Upon  this  case  the  supreme  court  says :  "  We  are  of  opinion 
that  com])lainant  has  mistaken  the  ap])ropi-iate  remedy  in  the 
case,  which  was  l)v  writ  of  vicuKhtimis  from  the  circuit  court." 

We  have  been  furnished  with  no  authority  for  the  substitu- 
tion of  a  bill  in  equity  and  injunction  for  the  writ  of  riKin- 
damus.  An  injunction  is  genei'ally  a  preventive  writ,  not  an 
affirmative  remedy.  It  is  sometimes  used  in  the  latter  char- 
actei',  but  this  is  in  cases  when  it  is  used  by  the  court  to  carry 
into  effect  its  own  decrees,  as  in  putting  the  purchaser  under  a 
decree  of  foreclosure  of  a  mortgage  into  possession  of  the  prem- 
ises. Even  the  exercise  of  this  power  was  doubted  till  the  case 
of  Kershaw  v.  Thompson,  4  Johns.  Ch.,  ()09,  in  which  the 
learned  chancellor,  after  an  examination  of  the  cases  in  Eng- 
land on  the  subject,  came  to  the  conclusion  he  possessed  it, 
not,  however,  by  the  writ  of  injunction,  but  by  the  writ  of 
assistance. 

In  Rogers  Locomotive  Works  v.  Erie  liailway  Co.,  20  N.  J. 
Eq.,  379,  the  court  after  a  learned  review  of  all  the  cases,  both 
English  and  American,  bearing  upon  the  subject,  announced 
the  conclusion  that  a  mandatory  injunction  will  not  be  ordered 
upon  a  preliminary  or  interlocutory  motion,  but  only  upon 
final  hearing,  and  then  only  to  execute  the  decree  or  judgment 
of  the  court.  It  is  only  in  cases  of  obstruction  to  easements 
or  rights  of  like  nature,  that  maintaining  a  structure  as  a 
means  of  preventing  their  enjoyment  will  be  restrained,  and 
the  structure  ordei'cd  to  be  removed  as  part  of  the  means  of 
restraining  the  defendant  from  interrupting  the  enjoyment  of 
the  right.  To  the  same  effect  is  the  case  of  Audenreid  /'. 
Railroad  Co.,  08  Penn.  St.,  370. 

It  is  clear  to  my  mind  that  the  injunction  asked  for  falls 
within  the  category  of  mandatory  injunctions  and  cannot, 
therefore,  be  granted  on  motion. 

But  the  fatal  objection  to  the  motion  of  c()m])lainant  is 
found  in  the  character  of  his  l>ill.      It  is  eitlu^r  a  suit   in  effect 


302  EQUITY    PLEADING. 

against  the  state  of  Louisiana,  or,  if  not,  the  parties  defendant 
are  mere  nominal  })arties,  having  no  real  interest  in  the  con- 
troversy. In  either  case  no  decree  can  be  made  in  the  cause. 
This  case  is  clearl}'  distinguishable  from  the  cases  of  Osborn  v. 
The  Bank  of  The  United  States,  9  Wheat.,  738,  and  Davis  v. 
Gray,  16  Wall.,  203,  and  other  cases  cited  by  complainant. 

In  the  case  of  Osborn  v.  The  Bank,  the  bill  was  filed  by  the 
bank  to  restrain  Osborn,  who  was  auditor  of  the  state  of  Ohio, 
from  acting  under  a  void  law  of  a  state  in  the  collection  of  a 
tax  levied  upon  the  bank,  and  for  a  decree  against  Curry,  the 
late  treasurer,  and  Sullivan,  the  incumbent  treasurer,  and 
Osborn,  the  auditor,  for  money  illegally  collected  by  them 
from  the  bank. 

It  was  alleged  in  the  bill  that  neither  Curry  nor  Sullivan 
held  the  money  as  officers,  but  individuals.  The  court  in  this 
case  held  that  the  suit  was  well  brouglit,  because  the  state  was 
not  nominally  a  party  to  the  i-ecord,  and  the  parties  made  de- 
fendant had  a  real  interest  in  the  cause,  since  their  personal 
responsibility  was  acknowledged,  and,  if  denied,  could  be 
demonstrated. 

In  the  case  of  Davis  v.  Gray,  Davis,  who  was  defendant  in 
the  court  below,  and  who  was  named  upon  the  record  as  gov- 
ernor of  Texas,  was  sought  to  be  enjoined  from  casting  a  cloud 
upon  the  title  of  complainant  to  certain  lands  in  Texas  by 
locating  warrants  thereon  in  pursuance  of  a  void  and  uncon- 
stitutional enactment  of  the  state.  Although  he  profes.sed  to 
act  as  governor,  he  was  impairing  the  rights  of  complainant 
without  the  authority  of  any  valid  law;  he  was  acting  in  his 
own  wrong  and  upon  his  own  responsibility,  and  was  person- 
ally liable. 

In  both  these  cases  the  object  was  to  restrain  individuals 
holding  public  offices  from  doing  acts  to  the  injury  of  com- 
plainant, for  which  there  was  no  legal  warrant,  and  by  the 
doing  of  which  they  incurred  a  personal  liability.  How  dif- 
ferent is  the  case  under  consideration.  Here  is  an  attempt  to 
compel  the  public  officers  of  a  state  to  do  positive  and  affirma- 
tive acts  as  such,  to  compel  them  to  carry  out  what  the  com- 
plainant conceives  to  be  the  law  of  the  state,  not  in  accordance 
with  their  own  sense  of  duty  and  their  own  interpretation  of 
the  law.  In  the  case  of  Kentucky  v.  Dennison,  Governor,  24 
How.,  109,  it  was  held  that  neither  the  congress  nor  the  courts 
of  the  United  States  could  coerce  a  state  officer,  as  such,  to 


MCCAULKY    V.    KKLI.OGG.  803 

perform  any  duty  iiiiposc'd  upon  liini  by  act  of  congress.  Does 
it  not  Ibllow,  a  fortiori,  that  a  couit  of  the  United  States  can- 
not compel  the  governor  of  a  state  to  pxecute  a  hnv  j)assed  hv 
the  state? 

In  Osborn  v.  The  Bank,  and  Davis  v.  (iray,  it  was  hehl  that 
£i  United  States  circuit  court  might,  in  a  proper  case  of  e(juity, 
«njoin  a  state  officer  from  executing  a  state  law  in  conflict 
with  the  constitution  or  a  statute  of  the  United  States,  when 
such  execution  would  violate  the  rights  of  complainanl.  JUit 
no  case  has  yet  decided  that  a  circuit  court  of  the  United 
States  can  compel  the  executive  and  ad.ninistrative  officers  of 
a  state  to  execute  the  laws  of  the  state. 

The  dilemma  is  this :  If  the  suit  is  against  the  defendants 
in  their  official  character,  and  the  claims  made  uj)on  them  are 
in  their  oflicial  character,  the  state  may  be  considered  a  party 
to  the  recoi'd.  Madrazo  v.  Governor  of  Georgia,  1  Pet.,  110. 
If  the  suit  is  against  the  officers  as  individuals  merely,  and  the 
offices  the}'  hold  are  given  merely  to  describe  their  persons, 
they  have  no  interest  in  the  subject-matter,  and  no  decree 
should  go  against  them. 

In  the  view  I  have  taken  of  the  case,  I  have  conceded  what 
complainants  claim,  that  the  funding  bill  and  the  act  of  March 
14,  1S74,  are  both  unconstitutional  and  void,  and  have  re- 
garded the  bill  just  as  if  those  acts  had  never  been  passe<l.  to 
wit,  a  bill  to  compel  the  defendants,  officers  of  the  state,  to 
execute  its  laws.  This  may  be  done  in  the  case  of  the  ofKcers 
of  munici[)al  corporations,  but  the  sovereign  power  of  a  state 
cannot  be  so  coerced.  To  do  so  would  be  to  substitute  this 
court  for  the  executive  officers  of  the  state  ;  to  sup})lant  their 
views  of  duty  and  the  obligations  imposed  upon  them  by  their 
official  oath  by  the  discretion  of  this  court  and  its  oflicial  oath. 
In  other  words,  it  would  be  an  undertaking  upon  the  part  of 
this  court  to  administer  the  state  government.  This  the  court 
has  no  power  and  no  inclination  to  do. 

An  action  against  the  executive  officers  of  a  state  to  compel 
them  to  com))ly  with  the  contract  of  the  state  is  a  suit  against 
the  state  and  in  violation  of  the  constitution  of  the  United 
States. 

In  my  judgment  this  is,  to  all  intents  and  i)ur|)osi's,  a  suit 
against  the  state.  The  oflicers  of  the  state,  including  the  chief 
executive,  are  .sued  in  their  official  capacity  to  comj)el  them  to 
execute  the  laws  of  the  state.     It  is  a  suit  to  enforce  a  contract 


304  EQUITY    PLEADING. 

of  the  state  to  pay  money.  The  officers  are  not  sued  as  indi- 
viduals who  happen  to  be  in  public  office,  to  prevent  them  from 
doing  some  act  to  the  prejudice  of  complainant  not  warranted 
by  law,  as  was  the  case  in  Osborn  v.  The  Bank,  and  Davis  v. 
Gray.  If  a  suit  like  this  can  be  sustained,  then  the  eleventh 
amendment  to  the  constitution  of  the  United  States  is  waste- 
paper. 

For  the  reasons  stated  the  motion  for  injunction  is  overruled, 

MARSH  V.  BENNETT. 
(Circuit  Court  for  Michigan  :  5  McLean,  117-131.     1850. ) 

Opinion  by  Wilkins,  J. 

Statement  of  Facts. — Motion  of  Mr.  Romeyn,  of  counsel 
for  defendant  Hill,  to  dissolve  injunction  heretofore  allowed  in 
this  case,  founded  on  the  bill  of  complaint,  and  the  allowance 
of  the  injunction  by  the  court,  without  notice,  according  to  the 
indorsement  on  the  bill,  and  the  records,  files  and  entries  in 
the  case,  and  on  the  answer  filed  bv  the  said  defendant,  George 
W.  Hill. 

The  bill  was  filed  on  the  7th  da}'  of  July,  1846,  and  the  in- 
junction allowed  on  the  same  day.  There  does  not  appear  to 
have  been  any  notice  given  to  the  defendants,  or  either  of 
them,  according  to  the  provisions  of  the  fifth  section  of  the  act 
of  congress  of  the  2d  of  March,  1793,  which  provides  that  the 
writ  of  injunction  "  shall  not  be  granted  in  any  case,  without 
reasonable  previous  notice  to  the  adverse  party,  or  his  attor- 
ney, of  the  time  and  place  of  moving  the  same."  And  the 
fifty-fifth  rule  of  practice  for  the  courts  of  equity  of  the  United 
States,  incorporating  this  provision  of  the  statute,  enjoins  due 
notice  on  the  adverse  party  prior  to  granting  any  special  in- 
junction. There  is  no  proof  of  notice  on  the  files,  and  no 
proof  exhil:)ited  now  that  notice  was  ever  given.  The  injunc- 
tion, therefore,  would  now  be  dissolved,  had  not  all  the  parties 
waived  the  proof  of  such  notice  by  their  voluntary  appearance. 
The  provision  of  the  statute  being  designed  for  the  benefit  of 
defendants,  the  proof  of  the  notice  recjuired  by  the  statute  may 
be  waived  either  before  or  after  injunction  issued  ;  and  regular 
reasonable  notice  will  be  pi'esumed  after  an  appearance. 

This  defendant,  George  D.  Hill,  by  his  solicitors.  Miles  and 
Wilson,  entered  his  appearance  on  the  29th  of  July,  1846  ;  and 
the  other  defendants,  Henry  D.  Bennett  and  George  N.  Gilbert, 


.MAi;sii    \-.    I ; i:\Mrn'.  ;i05 

likewise  vuluiitarily  ciitcicd  llirii- ;i|i]>(';ii';mcc,  l»y  < ).  llawkins, 
their  solicitor,  oii  [\\c  1  Itli  day  of  .Inly.  lS4(i.  On  tlic  :!lsl  of" 
August  foUowinii,-,  tlusclclciulant,  Hill,  lik-d  his  se}»ai'ate  an- 
swer to  the  hill  of  complaint,  and  on  the  2Uth  of  Octoher,  1840, 
his  second  separate  answer.  'IduMitlier  defendants  nevci-  have 
answered.  4'hese  several  acts  nj)()n  the  part  of  the  def(;ndant 
Hill,  and  the  api)earance  ol  the  other  dcf(Midants,  supply  the 
want  of  proof  of  the  reasonahle  notice  required  hy  the  statute 
for  the  protection  of  the  I'ights  of  defendants. 

But  the  defendant  Hill,  in  order  to  sustain  this  motion,  fur- 
ther relies  upon  tlie  ec[uities  exhibited  in  his  answer,  which 
chiefly  sets  forth  an  assignment  to  him,  by  Henry  D.  Bennett, 
on  the  lOtli  day  of  January,  184<),  of  all  the  goods,  chattels, 
book  accounts,  claims  and  demands,  and  personal  estate  of 
every  kind,  of  the  late  firm  of  Bennett  &  Ford,  then  (by  the 
previous  dissolution  of  the  said  firm)  the  property  of  the  said 
Bennett,  for  the  purpose  expressed  in  the  transfer  to  him,  and 
including  therein  a  note  of  the  defendant,  George  W.  Gilbert, 
for  |o,125,  with  interest  from  the  15th  of  January,  1840. 
This  assignment  to  Hill  is  on  certain  conditions,  and  for  cer- 
tain uses  and  purposes,  and  upon  certain  tru.sts  theivin 
expressed. 

The  assignor  first  provides  for  the  payment  of  certain  do- 
mestic creditors,  in  the  order  in  which  they  are  named  in  the 
first  class  absolutely,  and  to  the  whole  amount  of  their  respec- 
tive claims.  And  after  the  full  payment  of  these  creditors, 
provision  is  then  made  for  the  pro  rata  distribution,  among  the 
foreign  creditors  of  the  firm  of  B.  &  F  ,  from  the  residue  of  the 
fund  assigned  ;  providing,  and  expressly  declaring  that  the 
assignee  or  trustee  "shall  first  apjoropriate  all  the  proceeds  of 
the  trust  to  the  payment,  in  the  order  previously  prescribed 
and  set  forth,  of  all  the  creditors  therein  jjrovided  for,  who 
shall  not,  at  the  time  of  making  any  payment  or  dividend, 
have  made  by  themselves  or  attorneys,  any  costs  or  expenses 
upon  their  claims  ;  and  that  the  claim  or  claims  of  any  cred- 
itor or  creditors  of  the  said  firm  who  shall,  at  the  time  of  mak- 
ing any  payment  or  dividend,  have  made  or  occasioned  any 
cost  or  expense  upon  their  claims,  by  any  resort  to  any  pro- 
ceeding having  a  tendency  to  interfere  in  any  manner  with  or 
prevent  or  obstruct  the  easy  and  economical  execution  of  the 
trust,  shall  be  postponed,  and  no  })avment  whatever  thereafter 
be  made  thereupon,  until  all  the  other  creditors  shall  have. 
20 


•306  EQUITY    TLEADING. 

'been  paid  in  full ;  after  which  the  remaining  proceeds  shall  be 
first  applied  towards  the  payment,  jrro  rata,  of  all  such  claims 
upon  which  costs  have  been  made,  in  proportion  to  the  present 
amount  of  said  claims,  exclusive  of  costs,  so  far  as  the  same 
may  be  sufhcient  or  necessar}'^  to  satisfy  such  claims."  The 
•answers  disclose  the  material  facts  of  the  case. 

On  the  1st  day  of  January,  1846,  the  firm  of  Bennett  & 
Ford,  being  largely  indebted  to  certain  New  York  merchants 
for  mercliandise  purchased  during  the  previous  summer  and 
fall,  and  also  indebted  to  certain  persons  residing  in  their  vicin- 
age, dissolved  their  copartnership  ;  Ford,  the  retiring  partner, 
on  the  same  day,  assigning  and  selling  to  Bennett  all  his  inter- 
est in  the  stock  of  goods,  hooks  of  account,  etc.,  the  property 
of  the  said  copartnership,  "  for  the  purpose  of  paying  off"  the 
creditors  of  the  said  firm,  and  closing  the  concern.  On  the 
15th  of  the  same  month  the  said  Bennett  sold  and  delivered  to 
George  W.  Gilbert  the  stock  of  merchandise  in  the  store  lately 
owned  by  the  said  copartners  for  the  sum  of  $3,125,  and  took 
his  note  of  the  same  date  for  that  sum,  payable  in  one  year. 
On  the  19th  of  January,  but  a  few  days  after  the  dissolution 
of  the  partnership,  and  the  sale  to  Gilbert  (all  within  three 
weeks),  Bennett  makes  the  a.ssignment  to  the  defendant  Hill, 
as  set  forth  in  his  answer,  with  the  preferences,  and  limitations, 
and  trusts,  therein  contained. 

No  period  is  fixed  in  the  assignment  when  the  trust  is  to  be 
closed.  It  comprehends  the  co})artnership  estate  of  the  firm 
of  B.  &  F.,  viz.,  "  the  claims,  demands  and  personal  estate  of 
every  kind,  which  recently  were  the  property  of  the  said  co- 
partners, and  then  the  property  of  said  Bennett." 

The  assignor  Bennett  divides  the  creditors  of  Bennett  & 
Ford  into  two  classes,  and  designates  a  preference  for  tlie  first 
class  in  payment.  Annexed  to  the  assignment,  and  forming  a 
part  of  the  same,  is  the  schedule  of  property  assigned,  esti- 
mated by  the  assignor  at  $4,749.19,  inclusive  of  Gilbert's  note 
for  $3,125  given  expressly  for  the  stock  of  goods  which  had 
been,  "  during  the  previous  summer  and  fall,"  purchased  on 
credit  by  B.  &  F.  from  the  foreign  creditors  composing  the 
second  class. 

The  first  class  of  creditors  are  those  who  reside  in  Ann  Ar- 
bor and  its  vicinity,  and  are  directed  to  be  paid  first  the  full 
•  amount  of  their  claims  in  the  order  in  wliich  they  are  named. 
."Their  claims  are  stated  at  $849.19,  which  amount  with  the 


POOR    V.    CARLKTON.  307 

claims  of  the  other  creclitor.s  nut  eiiuiiifratcd  by  name,  but 
designated  generally  as  "  residing  in  neighboring  towns,"  to- 
gether with  the  expenses  of  the  trust,  'will,  at  a  reasonable  esti- 
mate, bring  the  first  })aymcnt  to  at  least  $1,200  ;  leaving,  for 
pro  rata  distribution  among  the  second  class  of  creditors 
(chiefly — yea,  with  one  exception — merchants  residing  in  the 
city  of  New  York,  who  had,  "the  previous  summer  and  fall," 
fuinished  the  firm  of  B.  &  F.  with  their  stock  of  goods  on 
credit),  the  sum  of  $3,549.19. 

The  amount  stated  to  be  due,  in  schedule  3,  to  these  foreign 
creditors  is  $6,205.84  ;  to  meet  which  the  above  balance  of 
$3,549.19  (if  it  ever  could  reach  even  that  amount)  was  de- 
signed for  pro  rata  distribution,  but  with  the  express  provi- 
sion by  the  assignor  Bennett,  tluit,  if  any  of  this  last  list  of 
creditors  should  commence,  or  have  commenced,  any  legal 
proceedings  for  the  recover}^  of  their  claims,  such  creditors 
should  be  postponed  from  any  payment  out  of  the  trust  fund 
until  all  the  other  creditors,  domestic  and  foreign,  should  have 
been  paid  in  full,  which  from  the  character  of  the  assignment 
and  the  amount  appropriated  for  distribution,  would,  of  course, 
be  forever ;  or,  in  other  language,  such  of  the  creditors  who 
might  bring  suit,  unless  they  all  did  so  in  second  class,  are 
excluded  from  the  fund. 

[Note. — Only  so  much  of  this  cat-e  is  reported  as  relates  to  Equity  Pleading 
and  Practice.] 

POOR  V.  CARLETON. 
(Circuit  Court  for  Massachusetts:  3  Sumner,  70-83.     1837.) 

Bill  to  enjoin  the  sale  or  transfer  of  certain  certificates  of 
stock. 

Opinion  by  Story,  J. 

Statement  of  Facts. — The  motion  to  dissolve  the  injunc- 
tion granted,  in  this  case,  has  been  made  and  argued  by  the 
counsel  for  the  defendants  upon  the  general  ground  tliat,  by 
the  rules  of  courts  of  equity,  after  the  answers  have  come  in, 
denying  the  whole  equity  of  the  bill,  the  defendants  are  en- 
titled to  have  the  injunction  dissolved.  On  the  other  hand, 
the  plaintiff  insists  that  the  motion  ought  not  to  be  granted, 
upon  the  ground  of  irreparable  mischief;  and  in  support  of 
the  argument  he  has  offered  and  read  certain  depositions  to 
establish  that  one  of  the  princi[)al  defendants  is  insolvent,  and 
another  is  of  low  character,  indigent  and  irresponsible,  and 


308  EQUITY    PLEADING. 

that  the  third  is  a  minor  ;  and  if  the  certificates  of  stock  stated 
in  the  hill  are  transferred,  or  payment  of  the  sums  due  and 
recoverahle  on  them  is  received  by  the  defendants,  there  will, 
in  the  event  of  the  suit  being  sustained,  be  an  irreparable  loss 
of  the  whole  property  to  the  plaintiff.  The  defendants  insist, 
in  reply  to  this  statement,  that  the  affidavits  are  not,  in  this 
stage  of  the  cause,  admissible  for  the  purposes  alleged  ;  and 
that  if  they  are,  the  case  made  by  them  of  insolvency,  and  low 
and  irresponsible  character,  will  not  justify  the  court  in  the 
extraordin^iry  step  of  continuing  the  present  injunction,  after 
such  a  full  denial  by  the  answer  of  the  whole  equity  of 
the  bill. 

In  the  first  place,  let  us  consider  the  ground  of  the  defend- 
ants, as  to  the  right  to  have  the  injunction  dissolved,  upon  the 
coming  in  of  the  answer.  This,  it  is  to  be  observed,  is  not  the 
case  of  the  common  injunction  issued  against  the  defendants 
for  not  a})pearing,  or  for  not  answering  the  bill  at  the  time 
prescribed  by  the  practice  of  the  court.  In  such  cases,  which 
usually  occur  in  bills  to  stay  proceedings  at  law,  it  is  of  course 
to  dissolve  such  an  injunction,  if  the  answer  denies  the  whole 
merits;  and  the  plaintiff  will  not  be  permitted  to  read 
affidavits  in  contradiction  to  the  answer,  upon  the  motion  to 
dissolve  the  injunction.  This  is  sufficiently  apparent  from  the 
statements  made  by  Mr.  Eden,  in  his  valuable  book  on  in- 
junctions.    Eden  on  Injunct.,  88,  108,  109,  118,  326. 

But  tlie  })resent  case  is  one  of  a  special  injunction  granted  to 
restrain  the  negotiation  of  the  certificates,  and  the  receipts  of 
payment  thereon,  until  the  further  <jrder  of  the  court.  Now, 
in  such  cases,  there  are  two  points  which  seem  well  establislied 
in  practice ;  first,  that  the  dissolution  of  the  injunction  is  not 
of  course  upon  the  coming  in  of  the  answer,  denying  the 
merits ;  and  secondly,  that  upon  the  motion  to  dissolve  an  in- 
junction, the  plaintiff,  under  some  circumstances,  is  entitled  to 
read  affidavits  in  contradiction  to  the  answer,  not  indeed  to  all 
points,  but  to  many  points.  Mr.  Eden  (p.  326)  asserts,  in 
broad  terms,  that  "  there  are  few  points  of  practice  which  have 
been  more  discussed,  or  which  are  more  satisfactorily  estab- 
lished, than  that  by  which  the  right  of  the  plaintiff  has  been 
establi-shed  to  read  affidavits  on  the  motion  to  dissolve  in  con- 
tradiction to  the  defendant's  answ^er.  This  is,  perhaps,  stating 
the  doctrine  more  broadly  than  the  authorities  will  justify. 

The  main  distinctions,  which  seem  supported  by  the  author- 


roOR    V.    CAR], ETON.  309 

ities,  or  at  least  by  the  weight  of  aulhijiily.  aic  thc-c  :  In  the 
first  phiee,  in  cases  of  special  injuuctious,  il'  the  whole  merits 
are  satisfactorily  denied  hy  tlie  answjLM-,  the  injunction  is  ordi- 
narily dissolved  ;  but  there  are  exceptions  to  tlie  doctrine,  and 
these,  for  the  most  i)art,  are  fairly  resolvable  into  the  principle 
of  irreparable  mischief;  such  as  cases  of  asserted  waste,  or  of 
asserted  mismanagement  in  partnershij)  concei-ns,  oi-  of  as- 
serted violations  of  copy  rights,  or  of  j)atcnt  rights.  In  cases 
of  this  sort,  the  court  will  look  to  the  whok'  ciicumstances, 
and  will  continue  or  dissolve  the  injunction  in  the  exi'rcise  of 
a  sound  disci'ction.  This  doctrine  is,  as  I  think,  lully  borne 
out  by  Lord  Hardwicke  in  Potter  v.  Cha})man  (Amb.  99  ;  S. 
C,  1  Dick.,  140) ;  by  Lord  Talbot  in  Gibbs  v.  Cole  (3  P.  Will., 
255);  bv  Lord  Kenyon  in  Strathmore  t\  Bowes  (2  Dick.,  073  ; 
S.  C,  ]  Cox,  203  ;  2  Bro.  Ch.,  88) ;  by  Lord  Eldon  in  Norway 
V.  Rowe  (19  Ves.,  153;  and  Peacock  v.  Peacock,  10  \'es.,  49). 
See,  also,  Isaac  v.  Humpage,  1  Yes.  Jr.,  427  ;  S.  (.'.,  2  Bro.  Ch., 
403  ;  Mr.  Swanston's  note  to  Smythe  v.  Smvthe,  1  Swanst., 
254,  note  (b) ;  Wyatt,  Pr.  Regist.,  230;  Hendis.  Ch.  Pr.,  590. 
A  doubt,  too,  in  })oint  of  law,  will  furnish  a  sufficient  ground 
against  dissolving  an  injunction  ;  and  was  so  ruled  in  ]\Iax- 
well  ('.  Ward,  11  Price,  17.  Indeed,  Mr.  (Chancellor  Kent,  in 
Roberts  v.  Anderson,  2  John.  Ch.,  204,  laid  down  the  proposi- 
tion generally,  that  the  granting  and  continuing  of  injunctions 
must  always  rest  in  sound  discretion,  to  he  governed  by  the 
nature  of  the  case. 

It  is  true  that  it  was  said  by  Lord  I'^ldon,  in  Cla])ham  /•. 
White,  8  Yes.,  30,  37,  that  "  if  the  answer  denies  all  the  cir- 
cumstances upon  which  the  equity  is  founded,  the  universal 
practice,  as  to  the  purpose  of  dissolving  or  not  reviving  the  in- 
junction, is,  to  give  credit  to  the  answer;  and  that  is  carried 
so  far  that,  except  in  the  few  excepted  cases,  though  live  hun- 
dred affidavits  were  filed,  nc»t  only  by  the  jdaintiiT,  but  i)V 
many  witnesses,  not  one  could  be  read  as  to  this  jiui'pose." 
This  is  strong  language  ;  but  many  qualifications  nuist  be 
engrafted  on  it,  as  will  be  manifest  from  the  leai-ned  chancel- 
lor's own  decision  in  Peacock  v.  Peacock,  ItJ  Ves.,  19,  and 
Norway  v.  Rowe,  19  \'es.,  144,  on  which  1  shall  j)resently 
comment;  and,  indeed,  as  his  own  exce|>tive  woi'ds,  "in  the 
few  excepted  cases,"  clearly  import.  I  confess  that  I  should 
be  sorry  to  find  that  any  such  ])i'actii'e  had  been  established, 
as  tliat  a  s|){'cial  injunction  should,  at   all   e\ents,  be  dissolved 


310  EQUITY    PLKADING. 

Upon  the  mere  denial  by  the  answer  of  the  whole  merits  of  the 
bill.  There  are  many  cases  in  which  such  a  practice  would 
be  most  mischievous;  nay,  might  be  the  cause  of  irreparable 
mischief  The  true  rule  seems  to  me  to  be,  that  the  question 
of  dissolution  of  special  injunction  is  one  wliicli,  after  the 
answer  comes  in,  is  addressed  to  the  sound  discretion  of  the 
court.  In  ordinary  circumstances  the  dissolution  ought  to  be 
ordered,  because  the  defendant  has  prima  facie  repelled  the 
whole  merits  of  the  claim  asserted  in  the  bill.  But  extra- 
ordinary circumstances  may  exi.st,  which  will  not  onh^  justify, 
but  demand,  the  continuation  of  the  special  injunction.  This, 
upon  the  principles  of  courts  of  equity,  which  always  act  so  as 
to  prevent  irre|)arable  mischiefs  and  general  inconvenience  in 
the  administration  of  public  justice,  ought  to  be  the  practical 
doctrine;  and  I  am  not  satisfied  that  the  authorities,  properly 
considered,  do  establish  a  contrary  doctrine.  If  they  did,  I 
should  hesitate  to  follow  them  in  a  mere  matter  of  practice, 
subversive  of  the  very  ends  of  justice. 

Indeed,  there  are  numerous  cases  which  show  the  gradual 
meliorations  or  changes,  often  silent  and  almost  unperceived, 
which  have  been  introduced  into  the  practice  of  the  courts  of 
equity,  to  obviate  the  inconveniences  which  experience  has 
demonstrated,  and  to  adapt  the  remedial  justice  of  these  courts 
to  the  new  exigencies  of  society.  Thus,  for  example,  thirty 
years  ago.  it  seems  to  have  been  thought  by  Lord  Ehkm,  that 
an  injunction  to  restrain  the  negotiation  of  a  negotiable  instru- 
ment was  an  extraordinary  interference  of  the  court,  and  that, 
upon  the  coming  in  of  the  answer,  the  case  stood  exactly  as  if 
the  case  had  been  upon  the  common  injunction  to  stay  pro- 
ceedings at  law.  Berkley  v.  Brymer,  S)  Ves.,  355,  35(1  And 
the  case  was  then  thought  distinguishable  from  that  of  an  in- 
junction granted  to  stay  waste,  in  which  the  court  would 
interfere,  on  account  of  the  danger  of  irreparable  mischief,  and 
continue  the  injunction  to  the  hearing.  But  this  doctrine  lias 
been  since  completely  abandoned;  and  in  Plood  v.  Astor,  1 
Russ.,  412,  Lord  Eldon  himself,  adverting  to  the  supposed 
practice  not  to  interfere  in  cases  of  negotiable  securities  to  pre- 
vent their  negotiation,  said:  "  I  do  not  recollect  such  a  doc- 
trine to  have  been  at  any  time  in  my  experience  the  law  of 
this  court.  It  is  true  that  applications  for  injunctions  of  the 
sort  now  moved  for  have  become  much  more  frequent  than 
they  were  in  former  days.      But  the  reason   is  that,  in   the 


POOR    V.    CAKLKTON.  311 

present  state  and  form  of"  tlio  transactions  ol'  iiiankiiid,  (here 
is  an  increased  necessity  for  them;  a  necessity,  too,  wliich  is 
not  likely  to  become  less."  This  last, doctrine  has  been  in  the 
fullest  manner  recognized  and  acted  ujx)n  by  the  supreme 
court  of  the  United  States.  Osborn  v.  liank  of  United  States, 
9  Wheat.,  738,  845. 

But  su[)posing  the  doctrine  were  as  conijirehen.sive,  as  to  the 
dissolving  of  a  special  injunction  on  the  coming  in  of  the 
answer,  as  the  counsel  for  the  defendants  has  contended;  the 
question  occurs  whether  it  is  applicable  to  all  kinds  of  an- 
swers w}iich  deny  the  whole  merits  of  the  bill,  or  whether  it  is 
applicable  to  such  answers  only  as  contain  statements  and  de- 
nials by  defendants  conusant  of  the  facts,  and  denying  the 
allegations  upon  their  own  personal  knowledge.  It  seems  to 
me  very  clear,  upon  principle,  that  it  can  apply  to  the  latter 
only.  The  ground  of  the  practice  of  dissolving  an  injunction 
upon  a  full  denial,  by  the  answer  of  the  material  facts,  is  that, 
in  such  case,  the  court  gives  entire  credit  to  the  answer,  upon 
the  common  rule  in  equity  that  it  is  to  prevail,  if  responsive 
to  the  charges  of  the  bill,  until  it  is  overcome  by  the  testimony 
of  tvv'o  witnesses,  or  of  one  and  other  stringent  corroborative 
circumstances  But  it  would  certainly  be  an  evasion  of  the 
principle  of  the  rule  if  we  were  to  say  that  a  mere  naked 
denial  by  a  party  who  had  no  personal  knowledge  of  any  of 
the  material  facts  were  to  receive  the  same  credit  as  if  the 
denial  were  by  a  party  having  an  actual  knowledge  of  them. 
In  the  latter  case  the  conscience  of  the  defendant  is  not  at  all 
sifted;  and  his  denials  must  be  founded  upon  his  ignorance  of 
the  facts,  and  merely  to  put  them  in  a  train  for  contestation 
and  due  proof  to  be  made  by  the  other  side.  This  distinction 
is  alluded  to  and  relied  on  b}'^  the  supreme  court  in  Clarke  v. 
Van  Reimsdyk,  9  Cranch,  160,  161.  See,  also  Hughes -?;.  Gar- 
ner, 1  Younge  &  Coll.,  328. 

The  sole  ground  upon  which  the  defendants  are  entitled  to 
a  dissolution  of  an  injunction  ui)on  an  answer  is  that  the 
answer  in  effect  disproves  the  case  made  by  the  bill  by  the 
very  evidence  extracted  from  the  conscience  of  the  defendant, 
upon  the  interrogation  and  discovery  sought  by  the  plaintiff 
to  establish  it.  But  what  sort  of  evidence  can  that  be  which 
consists  in  the  mere  negation  of  knowledge  by  the  party  ap- 
pealed to?  Such  negation  affords  no  presumption  against  the 
plaintiff's  claims,  but  merely  establishes  that   the  defendant 


312  EQUITY    PLEADING. 

has  no  persojial  knowledge  to  aid  it  or  to  disprove  it.  It  is 
upon  this  ground  that  it  has  been  held,  and,  in  my  judgment, 
very  properly  held,  that  if  the  answer  does  not  positively  deny 
the  material  facts,  or  the  denial  is  merely  from  information 
and  belief,  it  furnishes  no  ground  for  an  application  to  dis- 
solve a  special  injunction.  The  cases  of  Roberts  v.  Anderson, 
2  Johns.  Ch.,  202,  204;  Ward  v.  Van  Bokkelen,  1  Paige,  100; 
The  l^'ulton  Bank  v.  New  Yoi'k  &  Sharon  Canal  Co.,  1  Paige, 
311;  Rodgers  v.  Rodgers,  1  Paige,  426,  are  fully  in  point. 

The  importance  of  this  distinction  is  manifest  in  the  present 
case.  Here  the  defendants  are  merely  the  heirs  and  represen- 
tatives of  the  original  party  (Isaac  Carleton)  deceased;' and  the 
original  transactions  detailed  in  the  bill,  and  under  which  the 
plaintiff  asserts  his  title  to  relief,  took  place  from  twenty-eight 
to  thirty  years  ago;  and  there  is  no  pretense  to  say  that  any 
of  these  defendants  have  any  personal  knowledge  of  these 
transactions.  This  is  sufficiently  apparent  from  their  answers. 
But  by  a  certificate  of  the  births  of  the  defendants,  which  is 
very  properly  in  the  case  for  the  present  purpose,  it  appears 
that  the  principal  defendants,  Richard  Carleton  and  Isaac 
Carleton  (the  other  defendant  being  yet  a  minor),  were,  at  the 
time  of  the  transactions,  so  young  as  to  demonstrate  that  they 
could  have  no  personal  knowledge,  Richard  being  then  only 
nine  or  ten  years  old,  and  Isaac  only  two  or  three  years  old. 
For  the  purpose,  then,  of  dissolving  the  injunction,  their  an- 
swers cannot  be  treated  as  com[)etent  evidence  to  repel  the 
allegations  of  the  hill,  or  to  disprove  the  transactions  on  which 
it  is  founded. 

In  I'egard  to  the  admission  of  the  alKdavits,  there  are  other 
considerations  which  require  attention.  All  the  affidavits,  ex- 
cept that  of  Josiah  Barker,  are  simply  to  the  jjoint  of  the 
insolvency  and  indigence  of  the  defendant  Isaac  Carleton,  and 
of  the  low  character,  intem{)erance  and  indigence  of  the  de- 
fendant Richard  Carleton.  They  satisfactorily,  to  my  mind, 
establish  the  facts,  if  they  are  admissible  in  evidence;  and 
that  they  are  so  admissible  I  cannot  doubt,  for  they  are  merely 
to  collateral  matters,  not  touched  by  or  contradictory  to  the 
answers.  Taggart  n.  Hewlett,  1  Meriv.,  499,  and  Morgan  v. 
Goode,  3  Meriv.,  10  and  other  cases  cited  by  Mr.  Swanston  in  his 
note  to  Smj'the  i'.  Smythe,  1  Swanst.,  254,  sufficiently  establish 
fliis  position.  See,  also,  Eden  on  Injunctions,  109.  Without 
doulit  the  defendants  are  at  liberty  to  repel  such  atlidavits  by 


I'ooi;    V.    CAltl.K'lON.  olo 

countiM-  aHidavits  to  \\\v  sniiic  |)()iii1s:  for  (itlici'wisc  tlicy  iiiii;lit 
be  coinproinitted  by  stati-iiu'iits  wiiirb  tlicy  cDuld  have  iio  dp- 
portunity  to  answer.  , 

In  retiard  to  the  affidavit  of  IJarker,  that  is  of  a  very  diilei-- 
eiit  eliaracter,  and  ^-oes  to  thi'  [)roof  of  the  ori^i;inal  t  i-ansaetions 
stated  in  the  bill,  and  is  in  direet  contradietion  to  the  negative 
allei[j;ations  in  the  answers.  It  was  not  tiled  when  the  injnne- 
tion  was  obtained;  but  it  has  been  tiled  since  the  answers  have 
come  in.  Under  these  circumstances  the  question  arises, 
whether  it  is  admissible  to  be  read  on  the  present  motion. 

In  cases  of  the  common  injunction,  it  has  been  already 
stated  that,  after  an  answer  denying  the  whole  facts  and 
merits,  affidavits  cannot  be  read  to  contradict  the  answer,  on 
the  motion  to  dissolve.  The  language  of  Lord  Eldon,  in 
Clapham  v.  White,  8  Ves.,  35,  36,  already  cited,  is  full  to  this 
purpose.  But  in  cases  of  special  injunctions,  affidavits  filed  in 
support  of  the  original  injunction  may  \)c  I'ead.  upon  the 
motion  to  dissolve,  in  contradiction  to  the  answei-,  in  special 
cases,  that  is  to  say,  in  cases  of  irreparable  mischief,  such,  for 
example,  as  of  waste.  See  Eden  on  Injunctions,  320  ;  Peacock 
V.  Peacock,  16  Ves.,  49,  50;  Smyihe  r.  Smythe,  1  Swanst., 
253,  and  cases  cited  in  note  (b) :  Norway  ''.  Kowe,  ID  \'es., 
144  ;  Charlton  v.  Panther,  19  Yes.,  149,  note  (c).  Put  it  has 
been  held  by  Lord  Eldon,  that  even  in  cases  of  waste  such 
affidavits  are  not  admissible  to  found  a  motion  for  an  injunc- 
tion after  the  answer  (none  having  been  previoush^  granted) ; 
because,  if  the  affidavits  are  filed  before  the  an.swer,  the 
defendant  po.ssesses  an  opportunity  of  explaining  or  denying 
the  facts  stated  in  these  affidavits  ;  but  if  the  plaintiff  reserves 
his  affidavits  until  after  the  answer  is  tiled,  he  does  not  deal 
fairly  Avith  the  defendant,  who  is  entitled,  before  answer,  to  be 
apprised  of  the  |)oints  on  which  the  plaintiff  rests  his  case. 
Smythe  ?'.  Smythe,  1  Swanst.,  253.  I  confess  myself  not  so 
strongly  impressed  with  the  force  of  the  reas')ning  as  the 
learned  judge  seems  to  have  been.  And  it  would  be  very  ea.sy 
to  obviate  the  objection,  by  allowing  the  defendant,  by  his 
own  as  well  as  other  counter  affidavits,  to  repel  the  statement, 
which  he  has  not,  by  his  answer,  had  an  o])por( unity  to  meet 
and  explain  or  deny. 

Theie  is  another  (lualitication  of  the  doctrine  in  cases  of 
irreparable  mischief,  and  that  is,  that,  though  the  original 
affidavits  mav   Ix'  read   as  to  other  facts  contradict(>d    1)\-    the 


314  KQUITY    PLKADING. 

answer,  they  cannot  be  read  in  suppv)rt  of  the  title  of  the 
plaintiff  which  is  contradicted  by  the  answer.  The  ground  of 
this  exception  seems  to  be  that  the  court  ought  not  collaterally 
to  decide  upon  the  title.  So  the  doctrine  was  established  in 
Norway  v.  Kowe,  19  Ves.,  144,  157.  Whether  that  doctrine 
stands  upon  a  satisfactory  foundation  is  quite  a  different  ques- 
tion. Upon  general  principles,  I  cannot  well  see  why  the 
court,  to  prevent  irreparable  mischief,  may  not,  upon  an  appli- 
cation to  continue  an  injunction,  look  to  affidavits  in  affirm- 
ance of  the  plaintiff's  title,  not  so  much  with  a  view  to 
establish  that  title,  but  to  see  whether  it  has  such  a  probable 
foundation  in  the  present  stage  of  the  cause  as  to  entitle  the 
plaintiff  to  be  protected  against  irreparable  mischief,  if  ufMrn 
the  hearing  it  should  turn  out  to  be  well  founded. 

In  cases  of  irreparable  mischief — and  I  think  the  present 
case  properly  falls  under  that  head,  or  stands  upon  the  same 
analogy — it  seems  to  me  that  the  more  fit  course  for  the  due 
administration  of  public  justice  is  to  follow  out  the  sugges- 
tions of  Lord  Eldon  himself,  in  the  case  of  Peacock  v.  Pea- 
cock, 16  Ves.,  51.  His  lordship  in  that  case,  which  was  u[)on 
a  motion  respecting  an  injunction  in  a  case  of  partnership, 
said  :  "  With  regard  to  the  point  of  practice  as  to  reading  affi- 
davits, this  court  has  interfered  in  these  cases  of  partnership 
upon  principles  not  the  same,  but  analogous  to  those  on  which 
it  interposes  in  the  case  of  waste.  In  that  instance,  if  the 
lact  can  be  maintained,  the  objection  is  proved  with  very  little 
effect,  that  the  parties  may  proceed,  vying  with  each  other  by 
affidavits  without  end.  The  court  does  permit  affidavits,  tak- 
ing care  to  prescribe  limits  according  to  the  circumstances 
of  each  case."  This,  it  appears  to  me,  is  the  true  view  of  the 
matter.  The  admission  of  the  affidavits,  whether  filed  before 
or  after  the  answer,  whether  they  are  to  the  title  of  the  plain- 
tiff or  to  the  acts  of  the  defendant,  although  they  are  contra- 
dictory to  the  answer,  ought  to  rest  in  the  sound  discretion  of 
the  court,  according  to  the  circumstances  of  each  particular 
case,  without  the  court's  binding  itself  by  any  fixed  and  un- 
alterable rules  as  to  the  exercise  of  that  discretion.  This  seems- 
to  have  been  the  course  which  commended  itself  to  the  mind 
of  that  great  equitv  judge,  Mr.  Chancellor  Kent.  See  Koberts 
V.  Anderson.  2  Jolin.  Ch.,  202,  205.  But  see  Eastham  v.  Kirk, 
1  John.  Ch.,  444. 

I  have  looked  into  the  earlier  practice  of  the  court  of  chan- 


roOK    V.    CAKl.KTON.  315 

eery,  in  order  to  yatisly  niyscir  wlictlier.  in  all  cjises  ol"  irre- 
parable niiseliief",  the  court  had  positively  limited  its  own  dis- 
cretion, under  all  circumstances,  in  the  manner  supposed  by 
the  modern  authorities. '  Mr.  Dickens,  wliose  great  experience 
in  the  practice  of  the  court  has  been  tliought  by  Lord  Eldon 
to  entitle  his  oi)inion  to  great  weight  in  such  matters  (Xoi'way 
V.  Ivowe,  19  Ves.,  154),  in  reporting  the  case  of  Strath  more  v. 
Bowes,  1  Dick.,  673  ;  8.  C,  1  Cox,  2(13  ;  2  Bro.  Ch.,  88,  has,  it 
is  true,  given  us  his  view  of  the  practice  in  the  following 
terms:  "On  application  to  continue  or  dissolve  an  injunction, 
either  of  course  or  special,  1  have  always  understood  it  to  be 
the  rule  that,  though  afiidavits  are  not  to  be  read  to  sup})ort 
the  plaintiff's  equity,  that  is,  his  right  to  come  into  the  court, 
wdien  denied  b}'  the  defendant's  answer,  yet  in  injunctions  to 
stay  waste,  or  in  the  nature  of  waste,  when  the  waste  sworn  to 
and  upon  which  the  injunction  is  grounded  is  denied,  the 
court  will  admit  proof  by  affidavit  in  suj)port  of  the  facts." 
This  passage  seems  certainly  corroborative  of  what  has  been 
supposed  to  be  the  later  general  practice.  Yet  it  is  difficult, 
notwithstanding  Mr.  Dickens'  subsc(][uent  explanations  of  the 
grounds  of  this  practice,  to  perceive  what  solid  distinction  there 
is,  or  ought  to  be,  between  admitting  affidavits  as  to  title  and 
affidavits  as  to  the  facts  of  waste  ;  for  each  of  them  are  equally  in 
opposition  to  the  answer  in  relation  to  the  material  points  of 
relief  Mr.  Dickens  at  that  time  also  thought,  that  affidavits 
b}'  the  defendant,  in  support  of  his  answer,  were  not  admis- 
sible. But  Lord  Eldon  considers  the  present  practice  to  be, 
or  at  least  that  it  ought  to  be,  upon  principle,  otherwise. 
However,  Lord  Eldon  does  not  understand  Mr.  Dickens  to 
mean  to  assert,  what  the  pa.ssage  above  cited  may  seem  at  first 
sight  to  import ;  for  he  says,  in  Norway  r.  Ivowe,  19  Ves.,  104, 
"Mr.  Dickens,  however,  did  not  mean,  that  if  there  is,  b}'  the 
answer,  a  total  denial  of  the  plaintiff's  title  to  stay  waste,  the 
plaintiff  could  not  V)y  affidavit  as.sert  his  title,  conti'adicting  the 
answer  in  that  respect  ;  "  a  concession,  if  well  founded,  which 
removes  the  statement  of  Mr.  Dickens  out  of  the  present  case. 
See,  also,  Eden  on  Injunctions,  p.  328. 

The  truth  seems  to  be,  that,  in  cases  of  this  sort,  the  prac- 
tice has  been  shifting,  from  time  to  time,  to  meet  the  new 
exigencies  of  society  and  the  pressure  of  peculiar  circum- 
stances;  and  the  court  has  never  suffered  itself  to  be  entrapped 
by  its  own  rules,  so  as  to  interfere  with  the  purposes  of  sub- 


316  EQUITY    PLEADING. 

stantial  justice.  The  practice  in  America  has,  I  beheve,  on 
this  subject,  become  more  liberal  than  it  is  in  England  ;  and 
if  it  were  necessary,  I  should  not  hesitate  to  admit  affidavits 
to  contradict  the  answer,  for  the  purpose  of  continuing  or 
even  of  granting  a  special  injunction,  where  I  perceived  that, 
without  it,  irreparable  mischiefs  would  arise.  In  the  present 
case,  there  are  circumstances  wliich  might  free  me  from  the 
necessity  of  asserting  so  broad  a  doctrine.  But  I  wish  rather 
to  dispose  of  the  case  upon  the  general  ground  that  the  grant- 
ing and  dissolving  injunctions  in  cases  of  irreparable  mischief 
rest  in  the  sound  discretion  of  the  court,  whether  applied  for 
before  or  after  answer  ;  and  that  affidavits  may  after  answer 
be  read  by  the  plaintiff  to  support  the  injunction,  as  well  as 
by  the  defendant  to  repel  it,  although  the  answer  contradicts 
the  substantial  facts  of  tlie  bill,  and  the  affidavits  of  the 
plaintiff  are  in  contradiction  of  the  answer. 

The  motion  to  dissolve  the  injunction  is  accordingly  refused. 

BROWN  V.  THE  PACIFIC  MAIL  STEAMSHIP  COMPANY. 

(Circuit  Court  for  New  York  :  5  Blatchford,  525-537.     1867. ) 

Statement  of  Facts. — The  plaintiffs  in  this  case  are  sub- 
jects of  Great  Britain.  The  defendants  are  the  Pacific  Mail 
Steamship  Company,  the  Atlantic  Mail  Steamship  Company, 
and  certain  individuals,  all  of  whom,  except  one  Butterfield, 
were  residents  of  New  York.  The  two  com])anies  were  incor- 
porated under  the  laws  of  New  York. 

Opinion  by  Blatchford,  J. 

This  case,  except  as  to  the  defendant  Butterfield,  is  one 
where  the  court  clearly  has  jurisdiction  of  the  parties.  The 
plaintiffs  set  out  that  they  are  the  owners  of  three  thousand 
five  hundred  shares  of  the  capital  stock  of  the  Pacific  Mail 
Steamship  Company.  This  company,  it  appears,  has  a  capital 
now  of  120,000,000,  divided  into  two  hundred  thou.sand  shares 
of  $100  each.  The  bill  then  alleges  that  the  firm  of  Brown 
Brothers  &  Co.,  of  the  city  of  New  York,  have  standing  in  their 
names  seventy-seven  thousand  eight  hundred  and  thirty-nine 
shares  of  the  capital  stock  of  this  company.  It  tlien  .sets  out 
the  character  of  the  Pacific  Mail  Company,  its  progress,  and 
the  development  of  its  business,  and  alleges  certain  reasons 
which  existed  at  the  time  for  making  a  certain  contract,  which 
was    made    in   October,   1804,   with    Brown    Brothers    &    Co. 


BROWN  V.  Tin:   rAciFic  mail  sii;A.Msim'  comi-any.      .!]( 

These  reasons  were,  in  substaiui'.  tlic  rrt-ation  of  a  pfi-niaiK'nt 
share-lioldiiig  l)ody,  not  liable  to  the  ehanges  and  Huetuations  of 
the  stock  market.  By  this  agreement  it  aj)pears  that  some  ten 
persons  associated  themselves  together  and  bought  ten  thou- 
sand shares  of  stock,  which  at  that  time  was  one-f{uarter  of 
the  entire  capital,  and  that  they  made  Brown  Brothers  A:  Co. 
trustees  of  that  stock. 

The  written  agreement  in  regard  to  this  stock,  which  is  set 
out  in  the  bill,  sliows  that  the  arrangement  was  to  continue  in 
force  until  the  1st  of  December,  1808.  The  jn-ovisions  of  the 
agreement  substantially  are,  that  the  paities  to  it  are  not  to 
sell  their  stock  without  having  first  offered  to  sell  it  to  the  rest 
of  their  associates,  at  a  price  not  above  the  then  current  mar- 
ket value,  and,  in  case  of  their  declining  to  take  it,  without 
next  offering  it  to  Brown  Brothers  ct  Co.;  but  any  one  of  the 
parties  is  to  be  at  liberty  to  withdraw  on  those  terms  at  any 
time.  The  agreement  also  takes  the  shape  of  an  irrevocable 
power  of  attorney  to  Brown  Brothers  &  Co.  to  vote  upon  the 
.stock  ;  and  all  increase  of  such  shares  of  stock,  by  stock  divi- 
dends, until  the  1st  of  December,  1868,  is  to  come  under  the 
same  agreement.  In  this  respect  the  agreement  seems  to  dif- 
fer very  little  from  a  mere  power  of  attorney,  or  proxy  to 
Brown  Brothers  &  Co.,  to  vote  upon  these  shares,  with  the  ad- 
dition that  the  power  is  irrevocable,  and  that  there  are  certain 
privileges  reserved  to  the  owners  of  the  stock  in  regard  to  the 
manner  of  dealing  in  it,  and  withdrawing  from  the  arrange- 
ment. I  am  unable  to  perceive  anything  in  this  agreement 
contrary  to  public  policy,  or  anywise  open  to  objection  ;  and 
there  is  no  affidavit  produced  here,  on  the  part  of  any  one  con- 
cerned in  this  arrangement — any  one  who  is  a  piincipal  of 
these  agents  or  trustees,  complaining  of  anything  wrong  in  re- 
gard to  the  administration  of  the  tru.st.  ov  that  there  is  any 
prejudice  by  having  the  stock  in  the  }»osition  in  which  it  is 
placed. 

Then  there  is  a  .second  agreement  set  out,  whereby,  as  the 
bill  alleges,  the  Atlantic  Mail  Steam.'^hi})  Company  became 
stockholders  in  the  Pacific  Mail  Company  to  a  certain  amount 
of  stock,  and  made  Brown  Brothers  &  Co.  their  trustees  under 
an  agreement  running  for  the  same  length  of  time,  namely, 
until  December  1,  1868,  with  an  irrevocable  power  of  attorney 
to  Brown  Brothers  &  Co.  to  vote  u])on  such  stock,  and  a  pro- 
vision that  the  stock  was  not  to  be  sold  unless  it  was  oU'ered  to 


318  EQUITY    PLEADING, 

be  sold  first  to  the  Pacific  ]\Iail  Company.  For  all  the  sub- 
stantial purposes  of  this  motion,  this  agreement  is,  in  substance 
and  effect,  the  same  as  the  first  one. 

The  bill  then  sets  out  the  further  development  of  the  Paci- 
fic Mail  Company  on  the  Atlantic  side,  and  the  extension  of 
its  operations  by  a  line  to  China  and  Japan,  consisting  of  large 
steam  vessels,  and  the  further  increase  of  its  capital  stocky  in 
November,  18GG,  to  $15,000,000,  and  in  January,  1867,  to  $20,- 
000,000.  It  also  states,  what  is  quite  apparent,  that  this  in- 
crease of  stock  diminished  the  proportion  which  the  stock 
standing  in  the  names  of  Brown  Brothers  &  Co.  bore  to  the 
entire  stock.  It  then  sets  out  that  the  number  of  shares  under 
the  first  agreement  has  by  the  increase  of  it,  through  stock 
dividends,  increased  to  twenty -six  thousand  six  hundred  and 
sixt^^-six  shares,  which  number  of  shares  is  held  by  Brown 
Brothers  &  Co.  in  trust  under  that  agreement.  It  also  states 
that  the  number  of  shares  held  by  Brown  Brothers  &  Co.  under 
the  second  agreement  is  twenty-six  thousand  six  hundred  and 
sixty-six.  It  then  sets  out  the  fticts  connected  with  a  third  lot 
of  shares  standing  in  the  name  of  Brown  Brothers  &  Co.,  to 
the  number  of  twenty-four  thousand  three  hundred  and  fifteen 
shares,  of  which  twenty-four  thousand  and  seventy-two  shares 
were  issued  at  one  time  to  Leonard  W.  Jerome,  and  were  by 
him  transferred  to  Allan  JNIcLane,  trustee,  and  w^ere  by  him 
transferred  to  Brown  Brothers  &  Co.  •  But  I  do  not  perceive 
that  any  relief  is  asked  in  regard  to  this  third  lot  of  shares. 

The  bill  then  sets  out  that  tliere  is  an  election  for  directors 
of  the  Pacific  Mail  Company  coming  on  to-day  at  12  o'clock  ; 
that  four  of  the  defendants,  Hartson,  Joslyn,  Green  and  But- 
terfield  have  been  engaged  in  soliciting  proxies  for  the  purpose 
of  voting  on  shares  of  stock  at  such  election,  based  upon  state- 
ments such  as  appear  in  a  circular  signed  by  them,  of  which 
a  copy  is  annexed  to  the  bill ;  and  that  Mr.  Hartson  has  threat- 
ened to  have  the  directors  of  the  company  changed  ;  it  then 
avers  that  the  defendants  Lockwood  and  Davenport  have  asso- 
ciated themselves  with  the  defendants  Hartson,  Green,  Joslyn 
and  Butterfield  for  the  purpose  of  changing  the  directors  of 
the  company.  It  then  avers  specifically  that  the  charges  con- 
tained in  this  publication  by  Hartson,  Green,  Joslyn  and  But- 
terfield are  unfounded.  Those  charges  relate  generally  to 
breaches  of  trust  and  unfaithful  administration  on  the  part  of 
the  trustees,  Brown  Brothers  &  Co.     No  averment  is  made  by 


BKOWN   V.   THE    TACIFK;    MAII,    STHAMSHI  I'    COMPANY.       :')1!> 

the  defend  an  t.><,  in  any  niannrr  whatever,  that  tlirse  eharjjjes 
are  well  founded.  On  the  contrary,  the  allegation  in  thr  Kill 
that  the  charge.s  are  unfounded  is  virtually  admitted  i)y  not 
being  denied.  No  averment  is  made,  on  the  part  of  the  de- 
fendants, that  the  trusts  have  been  im^)roperly  discharged  by 
the  trustees.  The  bill  then  sets  out  that,  at  every  election  that 
has  taken  place  since  the  trusts  were  reposed  in  Brown  Ihoihers 
&  Co.,  the  election  has  always  been  made  by  votes  other  than 
those  cast  by  Brown  Brothers  &  Co.  In  other  words,  as  1  un- 
derstand, that  the  elections  have  always  been  unanimous,  and 
have  not  been  controlled  by  the  votes  cast  by  Brown  Brotliers 
<fe  Co.  on  the  shares  held  by  them  in  trust.  The  bill  then  sets 
out  that  Ilartson,  Joslyn,  Green  and  Chai-lick,  and  their  asso- 
ciates, have  purchased  a  large  number  of  shares,  .some  thirty 
thousand  to  thirty-five  thousand,  which  shares  stood,  at  the 
close  of  the  books,  in  their  names,  or  in  the  names  of  pei-sons 
believed  to  be  associated  with  them  in  this  movement,  foi'  the 
purpose  of  getting  control  of  the  company,  and  that  they  have 
bought,  or  arranged  to  control,  a.  large  number  of  ])roxies,  so 
that,  without  corresponding  beneficial  interest  in  the  shares 
they  represent,  and  without  any  choice  by  the  persons  who 
are  really  beneficially  interested  in  the  shares  so  held  by  them, 
they  seek  to  control  the  election,  and  carry  on  and  control  the 
company.  Upon  that  point  an  affidavit  is  ])roduced,  signed 
by  Hartson,  Green,  Joslyn  and  Charlick,  in  wliich  they  deny 
that  they  have  bought  proxies,  but  they  do  not  deny  that  they 
have  arranged  to  control  them.  This  affidavit  denies  nothing 
in  the  bill,  exce})t  the  allegation  that  they  do  not  own  the 
stock  which,  at  the  close  of  the  transfer  books,  stood  in  their 
names.  It  is  confined  to  the  one  simple  point  of  their  still 
owning  the  stock  which  stood  in  their  names  at  that  time. 

The  bill  then  avers  that  the  parties  engaged  in  this  transac- 
tion will  still  be  in  a  minority  of  votes,  and  that  therefore  they 
purpose  to  do  certain  things.  No  allegation  or  averment  is 
set  up  by  the  defendants,' by  affidavit,  that  they  do  not  pur- 
pose to  do  the  things  alleged,  and  those  things,  as  set  out  in 
the  bill,  are  the  following  :  (1)  To  obtain  an  ex  parte  injunc- 
tion from  some  court  or  judge  forl)idding  I^rown  I>rothers  t^ 
Co.  from  voting  upon  the  shares  held  by  them  ;  (2)  To  obtain 
such  injunction  upon  the  pretense  that  Brown  Brothers  &  Co. 
have  improperly  acquired,  or  are  about  to  im])roperly  make 
use  of,  the  shares  held  by  them,  or  upon  otlier  inaccurate,  ill- 


320  EQUITY    PLEADING. 

founded  or  partial  statements;  (3)  That  such  jjretenses  will  be 
erroneous,  unjust  and  wholly  unfounded  ;  (4)  That  the  in- 
junction will  not  be  obtained,  or,  if  obtained,  will  not  be 
served  until  immediately  upon  such  election  ;  (5)  That  the 
effect  will  be  to  exclude  Brown  Brothers  &  Co.  from  voting  on 
the  fifty-three  thousand  three  hundred  and  thirty-two  shares 
held  by  them,  whereby  a  minority  of  stockholders  will  succeed 
in  choosing  a  board  of  directors,  against  the  wishes  of  the 
majority  and  of  the  plaintiffs.  No  one  of  these  averments  is 
denied  or  controverted.  On  the  contrary,  by  the  making  of 
the  affidavit  which  has  been  made  by  four  of  the  defendants 
upon  one  point,  every  intendment  must  be  taken  most 
strongly  against  the  i)arties  as  an  admission  of  all  the  matters 
stated  in  the  bill  which  the  affidavit  does  not  controvert, 
although  the  statement  in  the  bill  of  these  allegations,  and 
the  absence  of  any  denial  of  them,  would  be  sufficient  of  itself. 

The  bill  then  sets  out,  as  a  ground  of  apprehension  that 
these  things  may  be  done,  that  Hartson  and  his  associates  did 
substantially  the  same  things,  in  reference  to  an  election  of 
directors  in  another  company,  quite  recently.  Tliat  is  not 
denied.  It  then  sets  out  that  Hartson  is  the  president  of  the 
Atlantic  Mail  Steamship  Company,  and  that  he  and  Green, 
Meigs,  Joslyn,  Butterfield,  Seward  and  Dimock  are  directors 
of  the  Atlantic  Mail  Steamship  Company,  and  control  the 
same,  and  hold  the  great  mass  of  the  capital  stock  thereof.  It 
then  avers  that  the  consequences  of  this  meditated  transaction 
will  be  disastrous  to  the  Pacific  Mail  Company,  and  to  the 
common  interests  of  all  the  shareholders.  That  is  not  de- 
nied. The  bill  then  points  out  in  what  manner  it  will  be 
so  disastrous,  with  considerable  detail  and  particularity.  These 
averments  are  not  denied.  The  details  are  then  given  in  the 
bill  of  what  Hartson,  Green,  Joslyn  and  their  associates  intend 
to  do  to  the  injury  of  the  plaintiffs  and  of  other  stockholders; 
and  this  averment  is  not  denied.  The  bill  then  sets  out  that 
Hartson  and  his  associates  are  a  combination  of  stock  opera- 
tors and  stock  speculators,  who  are  designing  and  intending, 
in  this  way,  to  control  a  company  to  whose  true  prosperity, 
and  to  the  interests  of  whose  shareholders,  their  other  interests 
are  adverse.     This  averment  is  not  denied. 

Certainly,  if  there  ever  was  a  case  for  relief  of  some  kind  by 
injunction,  this  case  is  one  of  that  kind,  to  prevent  the  com- 
mission of  so  great  and  admitted  a  wrong,  wholly  undefended. 


HI.'OWN    V.   Till-:     l'A(II-|c     MAIL    S  Tl'lA  MSI  1 1 1'    (■(»Mi•A^■^•.         .'Vil 

It  is  a  c"isi'  ill  which  there  would  he  lui  adecill.ile  leiiiedv  at 
law  ;  because  ihe  hiw,  as  settled  by  the  supreme  eourt  of  the 
United  iStates,  in  ie<;ard  to  the  jurisdiction  in  suits  in  eciuity 
of  the  courts  of  the  United  States,  in  view  of  the  statute,  which 
declares  that  there  shall  be  no  remedy  in  equity  wiun-e  there 
is  a  plain,  adequate  and  complete  remedy  at  law,  is,  that  the 
remedy  at  law  must  be  as  efficient  to  the  ends  of  justice,  and 
its  complete  and  jirompt  administration,  as  the  remedy  in 
equity.  Now,  in  the  present  case,  the  election,  taking  place 
under  these  circumstances,  which  it  is  thus  admitti-d  will  be 
the  circumstances  of  the  case,  would  be  perfectly  legal, 
although  accomplished  in  this  way  by  a  minority  of  the  votes. 
There  would  be  no  ground,  so  far  as  I  am  able  to  perceive,  for 
setting  aside  the  election,  because  an  injunction,  obtained  from 
a  proper  court  having  jurisdiction,  had  excluded  certain  per- 
sons from  voting. 

In  this  case,  no  want  of  time  to  meet  the  charges  of  the  bill 
has  i)een  set  up ;  no  application  to  postpone  the  motion  has 
been  made ;  the  parties  have  been  represented  by  able  coun- 
sel, in  a  hearing  of  some  six  hours,  while  the  allegation  in 
the  bill  is  admitted,  that  the  defendants  intend  to  |)rocure 
an  injunction  of  the  description  alleged  in  the  bill,  without 
giving  the  plaintiffs  or  Brown  Brothers  &  Co.  any  opportunity 
of  being  heard.  As  I  before  remarked,  four  of  the  defendants 
have  made  an  affidavit  upon  one  minor  point,  and  have 
denied  nothing  else.  They  must,  therefore,  be  held  to  admit 
everything  which  they  do  not  deny.  Under  these  circum- 
stances, it  certainly  would  be  a  rei)roach  to  the  administration 
of  justice,  if  these  foreigners  could  have  their  })roperty  invaded 
in  this  way,  by  measures  admitted  to  be  wholly  without  any 
ground  to  support  them,  without  any  means  of  relief 

As  to  the  character  of  the  injunction  asked  for,  it  is  laid! 
down,  in  Judge  Redfield's  Treatise  on  the   Law  of  Railways; 
(vol.  2,  §  2'21),  that  "  it  has  been  common  to  i)roduce  a  posi- 
tive efif'ect,  through  an  injunction  out  of  chancery,  by  means-; 
of  a  prohibitory  order,"  and  that   a    mandatory   order  is,  in 
courts  of  equity,  seldom  denied,  unless  the  remedy  at  law  is.- 
perfectly  ade(|uate.     And  this  ca.se  presents  a  case  eminently 
of  equity  juiisdiction  —  a   case   of  irreparable  injury  to  the 
plaintiffs,  and  a  case  where  no  such  injury  can  be  produced 
to  the  defendants.     Indeed,  under  the  averment  of  the  bill, 
that  these  transactions  of  the  defendants  will  produce  great. 
21 


322  EQUITY    PLEADING. 

injury  to  the  interests  of  all  the  stockholders,  and  the  ad- 
mission, or  absence  of  denial,  of  such  averment,  it  is  clear  that 
there  can  be  no  injury  to  the  proper  interests  of  such  of  the 
defendants  as  are  existing  shareiiolders  in  the  Pacific  Mail 
Com|)any,  by  granting  an  injunction  ;  whereas  it  is  manifest 
from  the  statements  of  the  bill  that  there  is  a  clear  case  of 
probable  irreparable  injury  to  the  plaintiffs. 

I  have,  after  a  careful  examination  of  the  five  prayers  for 
injunction  in  the  bill,  come  to  the  conclusion  that  the  first, 
second  and  third  must  be  substantially  granted  ;  but  as  to  the 
fourth  and  fifth,  I  do  not  see  any  ground  for  granting  an  in- 
junction in  regard  to  them.  The}'  stand  on  very  different 
grounds  fi-om  the  first  three.  As  to  the  first  prayer  for  in- 
junction, I  grant  it  substantially  as  prayed  for,  except  as  to 
the  defendant  Butterfield,  who  is  not  a  citizen  of  the  state  of 
New  York.  I  do  not  think  the  court  has  any  .jurisdiction 
whatever  of  him,  under  any  aspect  of  the  case.  Lock  wood 
and  Davenport  have  been  served.  Hartson  and  Joslyn  are 
directors  of  the  Atlantic  Mail  Compan}',  and  process  was 
served  upon  the  company  at  its  office.  Under  the  statute, 
which  requires  reasonable  previous  notice  of  an  application  for 
an  injunction  to  be  given  to  the  adverse  party,  I  think,  so  far 
as  any  one  of  the  defendants  who  is  a  director  of  the  Atlantic 
Mail  Company  and  has  not  been  served  is  concerned,  that  he 
has  had  reasonable  notice,  by  the  service  on  the  company  at 
its  office.  Hartson,  Joslyn,  Green  and  Charlick,  however, 
come  in  under  another  aspect  of  the  case.  They  have  made 
an  affidavit  in  this  suit,  which  has  been  used  to  oppose  this 
motion,  and,  under  the  circumstances,  I  think  they  are  con- 
cluded from  setting  up  a  want  of  sufficient  notice. 

As  to  the  second  prayer  for  injunction,  Butterfield  must  be 
excluded  from  that,  of  course  ;  and  I  cannot  grant  that,  as 
concerns  the  other  shareholders  generally  of  the  Pacific  Mail 
Steamship  Company,  and  the  words  "  and  all  others  the 
shareholders  of  the  Pacific  Mail  Company,"  which  are  in  the 
prayer  of  the  bill,  must  be  stricken  out  from  the  injunction. 
I  do  not  think  I  can  enjoin  the  other  shareholders  without 
notice,  or  that  service  upon  the  Pacific  Mail  Company  is  to  be 
•considered,  for  the  purpose  of  this  second  prayer,  as  service  on 
such  other  shareholders. 

The  third  prayer  for  injunction  is,  I  think,  a  proper  one  as 
to  the  defendants  served,  Butterfield  being,  of  course,  excepted, 


BROWN  V.   THE    PACIFIC    MAIL    STEAMSIIIl'    COMPANY.       .'52.S 

if  he  has  been  served.  It  is  also  proper  as  to  Ilartsoii,  Joslyn, 
Green  and  Charlick,  some  of  whom  have  been  served,  and 
some  of  whom,  1  believe,  have  not  be^en  served.  But  all  four 
of  them  come  in,  und-er  the  j>revious  remarks,  because  of  the 
affidavit  which  they  have  made.  As  to  the  defendants  Meigs 
and  Seward,  and  many  others  not  before  mentioned,  so  far  as 
they  are  directors  of  the  Atlantic  Mail  Company,  I  think  that 
they  have  substantially  had  notice.  Therefore,  under  the 
third  prayer,  all  the  directors  of  the  Atlantic  Mail  Com{)any 
may  be  included  in  the  injunction. 

The  fourth  and  fifth  prayers  do  not,  I  think,  fall  at  all 
within  the  princi})lcs  u})on  which  the  first,  second  and  third 
are  granted;  and,  without  expressing  at  length  my  views  in 
regard  to  them,  I  decline  to  grant  the  injunction  })rayed  for  in 
them. 

In  regard  to  so  much  of  the  second  prayer  for  injunction  as 
seeks  to  extend  the  injunction,  to  forbid  the  defendants  from 
voting,  as  proxies,  for  such  stockholders,  who  are  not  parties 
and  are  not  themselves  enjoined,  as  have  given  their  proxies 
to  some  of  the  defendants  who  are  enjoined,  the  gravamen  of 
the  bill  is,  that  the  defendants  have  combined  to  conduct  their 
intended  operations  by  means  of  proxies  obtained  from  share- 
holders; and  that  averment  is  not  denied.  The  defendants 
deny  that  they  have  bought  proxies,  but  they  do  not  deny  that 
they  have  arranged  to  control  such  proxies.  I  think  that  the 
court,  having  its  hand  upon  Ilartson  and  his  associates  in 
these  transactions,  has  a  right  to  restrain  them  from  doing 
anything  in  that  regard,  either  individually  or  as  proxies  ; 
especially  as  the  bill  sets  out,  and  it  is  admitted,  that  the 
means  by  which  he  is  seeking  to  carry  on  this  scheme  is  by 
procuring  [»roxies.  I  do  not  mean  to  restrain  the  })arties  giv- 
ing the  proxies,  because  they  are  not  parties  to  the  suit,  but  I 
think  that  Hartson  and  his  associates,  no  matter  in  wliat 
capacity  they  act,  whether  individually  or  as  agents  or  attor- 
neys, must  be  restrained  by  the  court ;  otherwise,  the  whole 
injunction  might  be  utterly  inefTective.  By  the  allegations  of 
the  bill,  Hartson  and  his  associates  are  engaged  in  these  trans- 
actions, which  the  court  decides  are  improper  ones,  and  they, 
therefore,  ought  to  be  restrained  in  every  ca])acity. 

In  regard  to  the  petition  ])resented  by  Wheeler,  asking  to 
be  made  a  co-plaintitf  in  the  bill,  I  think  the  point  is  <lispo.sed 
of  by  the  rules  in  equity  prescribed  by  the  supreme  court.     A 


324  EQUITY    PLEADING. 

case  like  this  one  was  probably  foreseen,  and  is  provided  for 
in  the  forty-seventh  and  forty-eighth  of  the  rules  of  practice 
for  courts  of  equity.  The  forty-seventh  rule  provides  that  in 
all  eases  where  it  shall  appear  to  the  court  that  persons  who 
might  otherwise  be  deemed  necessary  or  proper  parties  to  the 
suit  cannot  be  made  parties  by  reason  of  their  being  out  of  the 
jurisdiction  of  the  court,  or  incapable  otherwise  of  being  made 
parties,  or  because  their  joinder  would  oust  the  jurisdiction  of 
the  court  as  to  the  parties  before  the  court,  the  court  may,  in 
their  discretion,  proceed  in  the  cause  without  making  such 
persons  parties  ;  and,  in  such  cases,  the  decree  shall  be  without 
prejudice  to  the  rights  of  the  absent  parties. 

The  forty-eighth    rule   provides  that  where   the  parties  on 
either  side  are  very  numerous,  and  cannot,  without  manifest 
inconvenience  and  oppressive  delays  in  the  suit,  be  all  brought 
before  it,  the  court,  in  its  discretion,  may  dis[)ense  with  mak- 
ing all  of  them  parties,  and  may  proceed  in  the  suit,  having 
sufficient  parties  before  it  to  represent  all  the  adverse  interests 
of  the  plaintiffs  and  the  defendants  in  the' suit  who  are  prop- 
erly before  it,  but,  in  such  case,  the  decree  shall  be  without 
prejudice  to  the  rights  and  claims  of  all  the  absent   parties. 
These  rules  have  been  acted  upon  ever  since  they  were  adopted, 
in  reference  to  cases  of  this  kind,  particularl}'  in  regard  to  cor- 
porations where  the  stockholders  are  numerous,  and  reside  in 
various  |daces.     But,  independently  of  all  that,  it  is  apparent 
that,  in   this  case,  to  make  Wheeler,  who  is  a  citizen  of  the 
state  of  New  York,  a  party  plaintiff,  would  oust  the  jurisdic- 
tion of  the  court;  and,  under  those  circumstances,  irrespective 
of  the  rules  referred  to,  the  rule  of  equity  would  be,  to  make 
the  person  a  party  defendant,  and  not  a  party  plaintiff.      It  is 
not  at  all  necessary,  in  order  to  give  to  Wheeler,  as   a  stock- 
holder in  the  Pacific  Mail  Company,  the  benefit  of  this  suit, 
that  he  should  be  made  a  co-})laintiff'.      He  may  come  in  and 
contribute  to  the  expenses  of  the  suit,  and  avail  himself  of  the 
benefits  of  it,  by   being   made  a  defendant.     But  the  forty- 
seventh  and  fortj'-eighth  rules  dispose  of  the  whole  question, 
and,  upon  the  statements  made  in  the  bill,  it  would  hardly  be 
a  proper  exercise  of  discretion  for  the  court  to  refuse  to  pro- 
ceed in  the  case   without  making  Wheeler  a  party  plaintiff, 
when  to  make  him  such  would  oust  the  jurisdiction  of  the 
court  in  regard  to  the  parties  before  it,  and  sufficient  parties 
are    before  it    to  represent  all    the  adverse    interests  of  the 


COLE  SILVKU  MIN.  CO.  V.  VlKdlNIA   (iOl.D   IIll.l,   WATKK   CO.     ..J.) 

adverse  [);irties  who  ai'e  [jropcrly  Ix'fore  it.  'I'lic  lorty-ei<;lith 
rule  disposes,  also,  of  the  objection  taken  on  the  j)art  of  the 
defendants,  founded  on  an  allidavit  \iut  in  by  Ihi-ni,  that  there 
are  shareholders  in  the  Pacific  Mail  Company  who  are  citizens 
of  the  state  of  New  Yoi'k,  and  are  not  made  j)artics  defendant. 
In  regard  to  the  objection  raised,  that  an  injunction  cannot 
go  against  parties  who  have  been  served  with  j)rocessor  notice 
because  some  of  the  defendants  have  not  been  served,  I  do  not 
understand  that,  according  to  the  usual  practice  in  e("|uity,  it 
is  not  regular  to  jtroceed  against  the  defendants  who  are 
served,  and  are  before  the  court,  as  far  as  an  injunction  is 
asked  against  them  and  may  be  pro])cr.  An  injunction  is 
asked  against  the  three  inspectors  of  election,  in  the  first  place, 
and  they  have  been  served.  The  two  corj)orations  have  been 
served.  An  injunction  is  also  asked  against  certain  indi- 
viduals, some  of  whom  have  been  served  and  some  have  not. 
In  regard  to  parties  who  have  not  been  served,  the  court  can- 
not grant  an  injunction  against  them,  unless  they  are  persons 
holding  such  a  position  as  that  they  can  be  considered  a 
single  party,  for  the  purpose  of  restraining  them  from  doing  a 
particular  act  in  which  all  are  concerned — such  as  being- 
members  of  a  body  of  trustees  or  of  the  board  of  directors  of  a 
corpoi'ation.  But,  so  far  as  })arties  are  concerned,  who  are 
sought  to  be  restrained  from  doing  individual  acts  in  indi- 
vidual matters,  the  court  has  no  power  to  include  them  in  an 
injunction  without  j)revious  notice  to  them.  That,  liowever, 
is  no  reason  why,  in  this  case,  an  injunction  may  not  go 
against  the  cor[)orations  or  the  inspectors  of  elections,  or  any 
individuals  who  have  been  served,  if  the  case  is  otherwise  a 
proper  one  for  an  injunction  against  them. 

THE  COLE  SILVER  MINING  COMPANY  r.  THE  \li;(;iNL\   OOl.D 
HILL  WATER  COMPANY. 

(Circuit  Court  for  Nevada  :   1  Sawvcr.  ()8o-()!).).      IS7L) 

Opinion  by  Field,  J. 

Statement  of  Facts. — This  is  a  motion  to  dissolve  an  in- 
junction ii^sued  u])on  the  l)ill  of  complaint.  It  is  made  ujton 
three  grounds  : 

1.  That  Herman  (ilauber,  who  is  a  citi/en  of  the  .^tate  of 
California,  is  an  indispensable  party  defendant  in  the  suit, 
without  whose  presence  the  coui't  cannot  proceed   to  a  decree. 


32G  EQUITY    PLEADING. 

2.  That  the  injunction,  though  preventive  in  form,  is  man- 
dator}^ ill  fact,  and  an  injunction  of  this  character  cannot  issue 
upon  an  interlocutory  application. 

3.  That  the  equities  of  the  bill  are  fully  denied  by  the 
answer. 

I.  The  question  whether  Glauber  is  an  indispensable  party 
depends  upon  the  further  C{uestion,  whether  he  is  materially 
interested  in  the  matter  in  controversy,  or  object  of  the  suit, 
and  that  interest  would  be  necessarily  affected  by  any  availa- 
ble decree  consistent  with  the  case  presented  by  the  bill. 

It  is  undoubtedly  a  general  rule  in  equity  that  all  persons 
materially  interested  in  the  matter  in  controversy,  or  object  of 
the  suit,  should  be  made  parties,  in  order  that  complete  justice 
may  be  done  and  a  multiplicity  of  suits  be  avoided.  And 
usually  when  it  appears  that  persons  thus  interested  are  not 
brought  in,  the  court  will  order  the  case  to  stand  over  until 
they  are  made  parties. 

A  court  of  equity,  as  has  been  said  b}'  a  distinguished  chan- 
cellor, deliglits  to  do  complete  justice,  and  not  by  halves.  But 
sometimes,  from  the  residence  of  ])arties  thus  interested,  the 
court  is  unable  to  bring  them  all  before  it.  Particularly  is 
this  so  with  the  circuit  court  of  the  United  States,  which  pos- 
sesses no  power  to  authorize  a  constructive  service  of  process 
upon  absent  or  non-resident  defendants,  and  which  can  only 
exercise  its  jurisdiction  in  that  class  of  cases  depending  u])on 
the  citizenship  of  the  parties,  where  all  the  parties,  however 
numerous,  on  one  side,  are  from  a  state  different  from  that  of 
the  parties  on  the  other  side.  In  all  such  cases  the  court  will 
consider  whether  it  is  possible  to  determine  the  controversy 
between  the  parties  present,  without  affecting  the  interests  of 
other  persons  not  before  the  court,  or  by  reserving  their  inter- 
ests. If  the  interests  of  those  ])resent  are  severable  from  the 
interests  of  those  absent,  such  determination  can  generall}'  be 
had,  and  the  court  will  proceed  to  a  decree.  But  if  the  inter- 
ests of  those  present  and  those  absent  are  so  interwoven  with 
each  other  that  no  decree  can  possibly  be  made  affecting  the 
one  without  equally  operating  upon  the  other,  then  the  absent 
persons  are  indispensable  parties,  without  whom  the  court 
cannot  proceed,  and,  as  a  consequence,  will  refuse  to  entertain  ' 
the  suit.  kShields  v.  Barrow,  17  How.,  130  ;  Barney  v.  Balti- 
more City,  6  Wall.,  280. 

The  inquiry,  then,  is  this:     Whether  (dauber  [tossesses  any 


COLE  SILVER  MIN.   CO.  V.VIRGINIA  GOI.D   INLL  WATKR  CO.    1,-t 

interest  in  tlie  controvcrs}-,  or  object  of  the  suit,  wliicli  in  so 
interwoven  with  that  of  the  other  defendants  that  no  available 
decree  consistent  with  the  case  presented  by  the  bill  can  be 
rendered  against  them,  which  will  not  necessarily  affect  him. 
The  suit  is  brought  to  j)revent  a  diversion  of  water  of  which 
the  complainant  claims  to  be  the  owner  by  discovery  and 
prior  appropriation.  'J'he  water,  or,  which  amounts  to  tlu; 
same  thing,  the  exclusive  use  of  it,  is  the  matter  in  contro- 
versy, and  the  substantial  object  of  the  suit  is  to  jjrevent  any 
interference  with  such  use  by  the  defendants.  Glauber,  ac- 
cording to  the  allegation  of  the  bill,  is  not  interested  in  the 
water  in  controversy,  but  only  in  the  tunnel  by  means  of 
which  the  water  is  diverted. 

Now  if  a  decree  can  be  rendered  which  will  secure  to  the 
complainants  the  exclusive  use  of  the  water,  and  at  the  same 
time  leave  the  right  and  interest  of  Glauber  in  the  tunnel  un- 
impaired, the  objection  founded  upon  his  absence  as  a  party 
defendant  will  not  be  tenable.  The  learned. counsel  of  the  de- 
fendants intimated  on  the  argument  of  the  case,  that,  should 
the  court  ultimately  determine  that  the  complainant  is  entitled 
to  the  water,  it  might  be  necessary  to  decree  that  the  tunnel  be 
filled  up.  If  only  a  decree  of  that  character  can  be  rendered 
to  give  protection  to  the  complainants'  rights,  then  undoubt- 
edly Glauber  is  an  indispensable  party.  But  tlie  com{ilain- 
ants'  counsel  suggest  several  forms  in  which  a  decree  may  be 
made  protecting  the  asserted  rights  of  the  complainants  with- 
out in  any  respect  trenching  upon  Glauber's  rights  in  the  tun- 
nel. The  defendants  might,  for  instance,  be  restrained  from 
interfering  with  the  water  or  performing  acts  to  prevent  the 
resumption  by  the  complainants  of  its  possession  and  use.  It 
is  stated  that  even  if  the  defendant  .should  not  be  decreed  to 
do  any  specific  act,  such  as  the  erection  of  a  bulkhead  or  the 
restoring  of  the  water  diverted,  a  decree  would  not  be  alto- 
gether fruitless  which  would  allow  the  complainants  to  pum[) 
the  water  from  the  bed  of  the  Nevada  Tunnel  into  its  own 
tunnel,  provided  no  counterwork  should  be  carried  on  in  the 
Nevada  Tuiniel  to  prevent  such  pumj)ing;  or  allow  the  com- 
plainants to  resume  possession  of  the  water  at  the  mouth  of 
the  tunnel.  A  decree  which  would  enjoin  the  defendants 
from  opposing  the  complainants'  resrumption  of  the  water  in 
either  of  these  modes  would  substantially  accomplish  the  ob- 
jects of  the  suit,  and  at  the  same  time  leave  the  Nevada  Tunnel 


328  KQL'ITY    I'LEADING. 

and  the  interests  of  (ilauber  therein  as  tliey  existed  previ- 
ousl3^ 

It  would  certainly  be  going  a  great  way,  and  not  entirely 
consistent  witli  proper  respect  for  my  associate,  who  is  pos- 
sessed, in  the  circuit  court,  with  equal  authority  with  myself, 
if  I  should  undertake  to  determine  against  his  conclusions 
upon  substantially  the  same  representation  of  facts,  without 
leave  first  granted  for  a  re-argument  of  the  question,  that 
Glauber  is  an  indispensable  party,  and  thus  decide,  in 
advance  of  the  })resentation  of  the  entire  case,  that  no  decree 
could  possibly  l^e  rendered  which  would  atford  'protection  to 
the  com))laiiiant  without  intVinging  u[)on  the  riglits  of  the 
absent  Glauber.  I  shall  leave  the  matter  to  his  determination, 
simply  observing  that  in  a  case  of  this  kind,  when  the  absent 
person  alleged  to  be  interested  would,  if  brought  into  court, 
oust  its  jurisdiction,  I  should  follow  the  course  suggested  by 
Mr.  Juctice  Story  in  West  v.  Randall,  2  Mason,  196,  and 
strain  hard  to  give  relief  as  between  the  parties  before  the 
court. 

II.  The  injunction,  although  preventive  in  form,  is  un- 
doubtedly mandatory  in  fact.  It  was  intended  to  be  so  by  the 
circuit  judge  who  granted  it,  and  the  objection  whi(;h  is  now 
urged  for  its  dissolution  was  presented  to  him,  and  was  fully 
considered.  I  could  not  with  propriety  reconsider  his  decision, 
even  if  I  differed  from  him  in  opinion.  The  circuit  judge 
possesses,  as  already  stated,  equal  authority  with  myself  in  the 
circuit,  and  it  would  lead  to  unseemly  conflicts,  if  the  rulings 
of  one  judge,  upon  a  question  of  law,  should  be  disregardetl,  or 
be  open  to  review  by  the  other  judge  in  the  same  case. 

But  were  I  not  restrained  by  this  consideration  from  inter- 
fering with  the  order  of  the  circuit  judge,  I  should  hesitate 
before  dissolving  the  injunction  upon  the  ground  stated.  The 
benefit  of  the  preventive  remedy  afforded  by  courts  of  equity 
in  the  process  of  injunction  would  often  be  defeated,  if  the 
remedy  only  extended  to  cases  where  obedience  would  not  re- 
quire any  affirmative  acts  on  the  part  of  the  party  enjoined. 

Tlie  owner  of  flumes,  aqueducts  or  reservoirs  of  water  might, 
for  instance,  flood  his  neighbor's  fields  b}^  raising  the  sluice 
gates  to  these  structures,  and,  if  the  flowing  should  not  be 
speedily  stayed,  might  destroy  the  latter's  cro])s  ;  and  yet,  ac- 
cording to  the  argument  of  the  learned  counsel,  no  injunction 
could    issu(;   to  restrain   the  owner  fi'om  continuing  the  flood. 


COLE  SILYP:K   mix.   CO.  \.  VlKcilMA   (loI.K    llll  I.   WATKU  CO.    o'I\> 

if  obedieiu'c  to  it  .•^lutulil  ix't|uii'c  liiin  to  do  I  lie  siiiiplc  nlliniia- 
tive  act  of  clo.sing  his  gates.  'l\\v  ikmsou  uIkisc  licMs  were  in- 
undated and  whose  crops  were  distiuyed,  in  the  ease  su|)|M)scd, 
would  find  poor  satisfaction  in  being  told  that  he  nni.'^t  wait 
until  final  decree  before  any  ])rocess  could  issue  to  compel  tho 
shutting  of  the  gates,  and  he  must  sct'k  compensation  for  the 
injuries  his  propei'ty  may  sutler  in  the  meantime  in  an  action 
at  law. 

There  is  no  species  of  property  re(juiring  more  fre(|uently 
for  its  protection  and  enjoyment  the  aid  of  a  court  of  e([uity, 
and  particularly  of  its  preventive  process  of  injunction,  than 
rights  to  water.  For  purposes  of  mining  as  well  as  for  ordi- 
nary consumption,  water  is  carried  in  the  mining  regions  of 
Nevada  and  California  over  the  hills  and  along  the  mountains 
for  great  distances,  by  means  of  canals  and  Humes  and  a(iue- 
ducts,  con.structed  with  vast  labor  and  enormous  expenditures 
of  money.  Whole  communities  dejH'ud  for  the  successful 
prosecution  of  their  mining  labors  upon  the  supply  thus  fur- 
nished ;  and  it  is  not  extravagant  to  say  that  nuich  of  the 
securit}^  and  conseciuent  vaku  of  this  species  of  property  is 
found  in  the  ready  and  ample  protection  which  courts  of 
equity  afford  by  their  remedial  processes  of  injunctions,  an- 
ticipating threatened  invasions  upon  the  property,  restraining 
the  continuance  of  an  invasion  when  once  made,  and  ])re- 
serving  the  j)roperty  in  its  condition  of  usefulness  until  the 
conflicting  rights  of  contesting  claimants  can  be  considered 
and  determined.  The  limitation  of  the  process  to  cases  calling 
for  no  affirmative  action  on  the  party  enjoined  would  strip  the 
process  in  a  multitude  of  cases  of  much  of  its  pi'actical  l)enefit. 

I  am  aware  that  there  are  adjudications  of  tril)unals  of  the 
highest  character  denying  the  authority  of  a  court  of  equity, 
on  a  preliminary  ai)plication,  to  issue  an  injunction,  even  in 
a  restrictive  form,  when  its  obedience  would  I'cquire  the  j)er- 
formance  of  a  substantive  act. 

Such  is  the  case  of  Audenreid  v.  The  Philadeli)hia  &  Ifead- 
ing  IJailroad  Company,  recently  decided  in  the  supreme  court 
of  Pennsylvania,  to  wliich  my  attention  has  been  called  by  the 
defendants'  counsel  (since  reported  in  68  Penn.  St.,  370).  Tiic 
opinion  in  that  case  was  delivered  by  Judge  Sharswood,  who 
is  a  jurist  of  national  reputation,  and  anything  which  falls 
from  him  is  justly  entitled  to  great  consideration.  lie  states 
that  the  authorities  both  in  England  and   in  this  country  are 


330  KCiUITV    I'L  FADING. 

very  clear  that  an  interlocutory  or  preliminary  injunction 
cannot  be  mandatory.  By  this  he  means,  I  suppose,  that  the 
authorities  show  that  such  an  injunction  cannot  be  mandatory 
in  form,  for  he  refers  to  the  case  of  Lane  v.  Newdigate,  10 
Ves.,  193,  when  Lord  Eldon  ordered  an  injunction  to  l)e 
drawn  so  that,  although  restrictive  on  its  face,  it  compelled, 
the  defendants  to  do  certain  specific  things.  Of  that  case  the 
learned  judge  observes  that  it  is  not  a  precedent  which  ought 
to  be  followed  in  any  court,  and  that  a  tribunal  which  finds 
itself  unable  directly  to  decree  a  thing,  ought  never  to  attempt 
to  accomplish  it  by  indirection. 

Notwithstanding  the  great  respect  I  entertain  for  the  opin- 
ions of  Judge  Sharswood,  and  for  the  decisions  of  the  supreme 
court  of  Penns^'lvania,  I  am  not  prepared  to  assent  to  the 
view  of  the  authorities  stated  in  the  case  cited,  nor  to  the  con- 
clusion there  expressed  that  the  cases  in  England  ought  not 
to  be  followed  in  any  instance. 

Certain  it  is  that  the  jurisdiction  of  the  court  of  chancery 
in  England  to  decree  in  special  cases  upon  motion  the  issue  oi 
injunctions  which,  though  restrictive  in  form,  may  still  require 
for  then*  obedience  the  performance  of  substantive  acts,  has 
been  uniformly  maintained  since  the  time  of  Thurlovv.  In 
Robinson  v.  Byron,  1  Brown's  Ch.  Cas.,  588,  a  motion  was 
made  for  injunction  upon  affidavits,  stating  that  since  April 
4,  1785,  the  defendant  who  had  large  pieces  of  water  in  his 
park,  suj)plied  by  a  stream  which  flowed  to  the  mill  of  the 
plaintiff  had  at  one  time  stopj)ed  the  water,  and  at  another 
time  let  in  the  water  in  such  quantities  as  to  endanger  the 
mill.  The  lord  chancellor,  Thurlow,  ordered  an  injunction  to 
restrain  the  defendant  "  from  maintaining  or  using  his  shuttles, 
floodgates,  erections  and  other  devices,  so  as  to  prevent  the 
water  flowing  to  tlie  mill  in  such  regular  quantities  as  it  had 
ordinarily  done  before  the  4th  of  April,  1785."  The  defend- 
ant was,  therefore,  compelled  by  this  injunction,  to  remove 
such  floodgates  and  other  erections  as  he  had  constructed  if 
they  impeded  the  regular  flow  of  the  water  as  it  had  existed 
before  the  date  designated. 

In  Lane  v.  Newdigate,  10  Ves.,  192,  already  mentioned  as 
referred  to  by  Judge  Sliarswood,  the  plaintiff  was  assignee  of 
lease  granted  by  the  defendant  for  the  purpose  of  erecting 
mills  and  other  buildings,  with  covenants  for  the  supply  of 
water  from  canals  and  reservoirs  on  the  defendant's  estates.. 


COLE  SILVER  MIN.   CO.  V.  VIllCINIA   (iOLD  HILL   W  ATKU  CO.    oSl 

reserving  to  the  defendant  the  liglit  of  iLsing  the  water  lor 
his  own  eollieries.  The  bill  prayed  generally  that  the  defend- 
ant might  be  decreed  to, use  and  nianag-'e  the  waters  of  the  oanal 
so  as  not  to  injure  the  })laintifl  in  the  occupation  of  his  manu- 
factory, but  i)articu]arly  that  the  defendant  might  be  I'c- 
strained  from  using  certain  locks,  and  thereby  drawing  off  the 
water  which  would  otherwise  run  to  and  supply  the  manufac- 
tory, and  be  decreed  to  restore  a  particular  cut  ibr  carrying  away 
the  waste  waters,  and  a  certain  stop-gate,  and  to  restore  the 
banks  of  the  canal  to  their  former  lieight,  and  also  to  repair, 
such  stop-gates,  bridges,  canals  and  towing-paths  as  existed 
previous  to  the  lease,  and  to  remove  certain  locks  since  made. 
Upon  motion  for  an  injunction,  the  lord  chancellor,  Eldon, 
expressed  a  doubt  whether  it  was  according  to  the  practice  of 
the  court  to  decree  repairs  to  be  done,  but  finally  made  an 
order  restraining  the  defendant  from  impeding  the  ])laintiff 
in  the  use  and  enjoyment  of  the  demised  premises  and  the 
mills  erected  thereon,  and  the  privileges  granted  by  the  lea.se, 
by  continuing  to  keep  the  canals,  or  the  banks,  gates,  locks  or 
works,  out  of  repair;  and  from  preventing  such  use  and  enjoy- 
ment by  diverting  the  water  or  the  u.se  of  any  locks  erected 
by  the  defendants,  or  by  continuing  the  removal  of  the  stoj)- 
gate,  the  chancellor  observing  at  the  same  time  that  the 
injunction  would  create  the  necessity  of  restoring  the  stop- 
gate. 

In  Ivankin  v.  Huskisson,  4  Sim..  18,  the  defendants  were 
restrained,  on  motion,  by  A'ice-Chancellor  Shadwell  from  con- 
tinuing the  erection  of  stables  on  certain  premises  agreed  to  be 
laid  out  as  an  ornamental  garden,  adjoining  a  club  house,  and 
from  preventing  such  part  of  the  building  as  was  already 
erected  from  remaining  thereon.  They  were  therefore  com- 
pelled to  remove  the  building  already  commenced. 

In  Hepburn  v.  Lordon,  2  Hemm.  &  Mill.,  345,  the  defend- 
ants were  restrained,  upon  motion,  by  Vice-Chancellor  \\' ood 
from  allowing  inflammable  damp  jute  dej)Osited  on  premises 
adjoining  those  of  the  plaintiff,  to  remain  there,  and  from 
bringing  any  more  in  such  quantities  as  to  occasion  danger  to 
the  plaintiff's  property. 

Other  ca.scs  to  the  same  purport  might  be  cited,  but  the.se 
are  sufficient.  I  think,  to  .show  that  a  court  of  equity  has  juris- 
diction to  i.ssue,  U})on  an  interlocutory  apj)lication,  an  injunc- 
tion which  will  operate  to  compel  the  defendants,  in  order  to 


332  EQUITY    I'LIiADING. 

obey  it,  to  do  substantive  acts.  It  is  a  jurisdiction  which 
should  only  be  exercised  in  a  case  where  irreparable  injury 
would  follow  from  a  neglect  to  do  the  acts  required.  Some  of 
the  adjudged  cases  evince  a  disposition  on  the  part  of  the  court 
to  restrict  rather  than  enlarge  this  jurisdiction.  Blakemore  v. 
Glamorganshire  Canal  Co.,  1  Mylne  &  K.,  154.  Undoubtedly 
the  general  purpose  of  a  temporary  injunction  is  to  preserve 
the  property  in  controversy  from  waste  or  destruction  or  dis- 
turbance until  the  rights  and  equities  of  the  contesting  parties 
can  bo  fully  considered  and  determined.  Usually  this  can  be 
effected  by  restraining  any  interference  with  it ;  but  in  some 
cases  the  continuance  of  the  injury,  the  commencement  of 
which  has  induced  the  invocation  of  the  authority  of  a  court 
of  equity,  would  lead  to  the  waste  and  destruction  of  the  prop- 
erty. Jt  is  just  here  where  the  special  jurisdiction  of  the  court 
is  needed — to  restore  the  property  to  that  condition  in  which 
it  existed  immediately  preceding  the  commencement  of  the 
injury,  so  that  it  may  be  preserved  until  final  decree. 

III.  It  only  remains  to  consider  whether  the  equities  of  the 
bill  are  so  fully  denied  by  the  answer  as  to  justify  the  dissolu- 
tion of  the  injunction.  The  material  allegations  of  the  bill 
are  that  the  complainant,  in  running  certain  tunnels  into  its 
mining  claims,  discovered  and  appropriated  the  water  in  con- 
trover.sy;  and  that  the  defendants  subsequently,  by  means  of 
the  Nevada  Tunnel,  struck  the  water,  and  diverted  it  from  the 
complainant.  These  allegations  are  not  positively  denied  by 
the  answer. 

The  construction  of  the  tunnels  of  the  complainant,  and  the 
diversion  of  the  water  by  the  defendants  through  the  Nevada 
Tunnel,  are  admitted.  The  discovery  and  prior  appropriation 
of  the  water  by  the  complainant  are  only  denied  upon  infor- 
mation and  belief;  and  every  denial  which  relates  to  the  title 
of  the  water  is  made  in  a  similar  manner.  Denials  in  that 
form  may  be  sufficient  to  raise  an  issue  for  trial,  but  they 
amount,  for  the  purposes  of  the  motion,  to  no  more  than  hear- 
say evidence.  They  will  not  justify  the  dissolution  of  the 
injunction. 

''The  sole  ground,"  says  Mr.  Justice  Story,  "upon  which 
the  defendants  are  entitled  to  a  dissolution  of  an  injunction 
upon  an  answer  is  that  the  answer  in  effect  disj)roves  the  case 
made  by  the  bill,  by  the  very  evidence  extracted  from  the  con- 
science of  the  defendant,  upon  the  interrogation  and  discovery 


COLE  SII.VKI;   MIN.   (^O.  V.  VIKGIMA   (iol  O   IIIII,  WATER  CO.    383 

sought  l)y  the  i>l;iiiitiir  (o  cstalilisli  it.  I»iit  wliat  sort  <»f"  evi- 
dence can  t!;at  be,  which  consists  in  the  mere  negation  ef 
knowledge  bv  the  party  appealed  to?  Sucli  negation  atlVu'ds 
no  ])resuni})tion  against  the  plaintiff's  claims;  but  merely  es- 
tablishes that  the  defendant  has  no  personal  knowledge  to  aid 
it  or  dis{)rove  it.  It  is  upon  this  ground  that  it  has  been  held, 
and  in  my  judgment  very  properly  held,  that  if  the  answer 
does  not  positively  deny  the  material  facts,  or  the  denial  is 
merely  from  information  and  belief,  it  furnishes  no  ground  for 
an  application  to  dissolve  a  special  injunction."  Poor  v. 
Carlton,  3  8umn.  78  ;  see  also,  Roberts  v.  Anderson,  2  Johns. 
Ch.,  202;  Ward  v.  Van  Bokkelen,  1  Paige,  100;  United 
States  V.  Parrott,  1   McAl.,  300. 

The  same  objection  applies  to  the  allegations  respecting  the 
new  matter  relied  upon  to  establish  prior  rights  in  the  two 
Schiels,  with  whom  the  defendants  claim  to  be  in  privity. 
Upon  insjjection  of  the  answer,  it  appears  that  all  which  is 
stated  in  relation  to  the  origin,  working,  continuance  and 
transfer  to  the  defendants  of  the  claims  of  t^hese  parties  is 
founded  upon  information  and  belief. 

The  statement  does  not  purport  to  be  made  ui)on  any  j)er- 
sonal  knowledge  possessed  by  the  defendants,  but  only  "  ac- 
cording to  their  information  and  belief."  Allegations  resting 
upon  this  ibundation  furnish  no  ground  for  disturbing  the  in- 
junction. For  all  the  purpo.ses  of  this  motion  the  case  stands 
precisely  as  though  these  allegations  were  omitted  from  tlie 
answer. 

The  questions  suggested  by  the  learned  counsel  of  the  de- 
fendants— whether  the  water  exists  in  such  state  or  condition 
as  to  render  its  diversion,  under  thc^  circumstances,  remediable, 
or  anything  more  than  daminnn  ah^^que  injuria;  and  whether 
the  injunction  is  consistent  with  the  policy  and  license  of  the 
general  government  to  miners  upon  public  lands — can  be  bet- 
ter considered  and  more  justly  determined  on  the  hearing 
after  the  entire  facts  of  tlie  case  are  developed  l)y  the  evi- 
dence. 

Upon  the  case  as  presented,  I  am  of  opinion  that  the  injunc- 
tion should  be  continued  until  the  hearing.  The  motion  to 
dissolve  the  injunction  is  therefore  denied. 


CHAPTER  XII. 


CllOSS-BILLS. 


Bttle  72. 

Where  a  defendant  in  equity  files  a  cross-bill  for  discovery 
only  against  the  plaintitf  in  the  original  bill,  the  defendant  to 
the  original  bill  shall  first  answer  thereto  before  the  original 
plaintiff  shall  be  compellable  to  answer  the  cross-bill.  The 
answer  of  the  original  plaintiff  to  such  cross-bill  may  be  read 
and  used  by  the  party  filing  the  cross-bill  at  the  hearing,  in 
the  same  manner  and  under  the  same  restrictions  as  the 
answer  praying  relief  may  now  be  read  and  used. 

BRONSON  V.  LA  CROSSE  &  MILWAUKEE  RAILROAD  COMPANY. 
(2  Wallace,  283-312.     1863.) 

Statpjment  OF  Facts. — This  was  a  suit  by  Bronson  and 
Soutter  in  the  circuit  court  for  the  district  of  Wisconsin,  to 
foreclose  a  mortgage  given  to  secure  the  bonds  of  the  company 
to  the  amount  of  $1,000,000.  The  Milwaukee  &  Minnesota 
Railroad  Company,  which  had  previously''  purchased  the 
equity  of  redemption  of  this  road  at  a  sale  under  a  tliird  mort- 
gage, was  made  a  party  defendant,  but  made  no  defense. 
Two  of  the  stockholders  of  this  company,  Rockwell  and 
Fleming,  asked  and  obtained  leave  to  file  their  answers  for 
the  company,  upon  the  ground  that  the  president  of  the  com- 
pany declined  to  make  any  defense.  The  defendants,  Rock- 
well and  Fleming,  who  claimed  under  the  third  mortgage, 
alleged  that  the  bonds  secured  by  the  prior  mortgage  had 
been  conveyed  to  complainants  without  consideration;  also 
that  the  foreclosure  was  collusive  as  between  the  railroad 
company  and  its  lessee.  Chamberlain,  who  fraudulently  and 
collusively  refused  to  apply  the  earnings  of  the  road  to  the 
payment  of  interest  on  the  bonds.     Certain  judgment  creditors 

(  334  ) 


BRONSON   V.   L\  CKOSSK  ^t  Ml  I.W  AUK  KH  ItAH.KOAI)  CO.       ;>35 

were  also  inado  ilet'eiulauts,  their  jiulgnients  havin*;  been  ob- 
tained since  the  execution  of  the  inortiia^'e. 

Opinion  by  Mr.  Justice  Nklso.n. 

As  the  two  stockhoUlers  (IJockwell  and  Flcinin<i),  thouj^h 
not  made  defendants  by  tlie  bill,  were  permitted,  by  leave  of 
the  court,  to  appear  and  put  in  answers  in  the  name  of  the 
Milwaukee  &  Minnesota  Company,  it  is  material  to  inquire  into 
the  etiect  to  be  given  to  them.  That  they  cannot  be  regarded 
as  the  answers  of  the  corporate  body  is  manifest,  as  a  cor[)o ration 
must  appear  and  answer  to  the  bill,  not  under  oath,  but  under 
its  common  seaL  And  an  omission  thus  to  appear  and  an- 
swer according  to  the  rules  and  {)ractice  of  the  court,  entitle 
the  complainants  to  enter  an  order  that  the  bill  be  taken  pro 
coiifes^o.  A  further  objection  to  the  practice  of  permitting  a 
party  to  appear  and  answer  in  the  name  of  the  corporation  is 
the  inequality  that  would  exist  between  the  parties  to  the  lit- 
igation. The  corporation  not  being  before  the  court,  it  would 
not  be  bound  by  any  order  or  decree  rendered  against  it,  nor 
by  sxuy  admissions  made  in  the  answi'r  or  stipulations  that 
might  be  entered  into  by  the  parties  or  their  counsel.  It  is 
thus  apparent,  that,  while  the  name  of  the  corporation  is  thus 
used  as  a  real  party  in  the  litigation  so  far  as  the  rights  and 
interests  of  the  complainants  are  concerned,  it  is  an  unreal 
and  fictitious  party  so  far  as  respects  any  obligation  or  respon- 
sibility on  the  part  of  the  respondents. 

It  is  insisted,  however,  that  the  directors  of  this  company 
refused  to  appear  and  defend  the  bill  tiled  against  them,  and  for 
the  fraudulent  purpose  of  sacrificing  the  interests  of  the  stock- 
holders; and,  hence,  the  necessity,  as  well  as  the  propriety 
and  justice,  of  permitting  the  defense  by  a  stockholder  in  their 
name.  Undoubtedly,  in  the  case  su])posed,  it  would  be  a  re- 
proach to  the  law,  and  especially  in  a  court  of  equity,  if  the 
stockholders  were  remediless.  But  in  such  a  case,  the  court 
in  its  discretion  will  permit  a  stockholder  to  become  a  i)arty 
defendant,  for  the  purpose  of  protecting  his  ov.'n  interests 
against  unfounded  or  illegal  claims  against  the  comi>any;  and 
he  will  also  be  permitted  to  appear  on  behalf  of  other  stock- 
holders who  may  desire  to  join  him  in  the  defense.  But  tliis 
defense  is  independent  of  the  company  and  of  its  directors,  and 
the  stockholder  becomes  a  real  and  substantial  party  to  the 
extent  of  his  own  interests  and  of  those  who  may  join  him, 
and    against    whom    any    proceeding,  order  or  decree  of  the 


336  EQUITY    PLEADING. 

court  in  the  cause  is  binding,  and  may  bo  enforced.  It  is 
true,  the  remedy  is  an  extreme  one,  and  should  be  admitted 
by  the  court  with  hesitation  and  caution  ;  but  it  grows  out  of 
the  necessity  of  the  case  and  for  the  sake  of  justice,  and  may 
be  the  only  remedy  to  prevent  a  flagrant  wrong.  A  com- 
plainant, if  he  chooses,  may  compel  a  corporation  to  appear 
and  answer  by  a  writ  oi  distringas ;  or  he  may  join  with  the 
corporation,  a  director  or  officer,  if  he  desires  a  discovery 
under  oath.  But  we  are  not  aware  of  any  other  except  a 
complainant  who  can  compel  an  appearance  or  answer.  Now, 
although  the  appearance  and  answers  of  the  stockholders 
(Rockwell  and  Fleming)  were  irregularly  allowed  by  the 
court,  as  each  was  permitted  to  appear  and  answer  in  the 
name  of  the  company,  yet,  as  the  defense  set  up  is  doubtless 
the  same  as  that  which  they  would  have  relied  on  if  they  had 
been  admitted  simply  as  stockholders,  we  are  inclined  to 
regard  the  answers  the  same  as  if  put  in  by  them  in  that 
character,  in  the  further  views  we  shall  take  of  the  case. 
Each  one  swore  to  the  truth  of  his  answer  in  the  usual  way. 

Before  we  enter  upon  an  examination  of  the  merits  of  the 
case,  it  will  be  proper  to  dispose  of  the  cross-bill  filed  by  Flem- 
ing against  the  complainant.  This  bill  was  filed  in  the  name 
of  the  company  alone,  signed  by  their  solicitors  and  counsel. 
The  name  of  Fleming  does  not  appear.  And  in  addition  to 
this,  it  appears  that  Fleming,  in  his  petition  for  leave  to  ap- 
pear £ind  answer  the  bill  in  the  name  of  the  company,  also 
asked  leave  to  file  a  cross-bill.  Leave  was  granted  to  put  in 
the  answer,  but  not  to  file  the  bill.  The  filing  of  it  subse- 
quently, therefore,  was  an  irregularity  for  which  the  court 
below  very  properly  afterwards  set  it  aside.  The  cross-bill,  so 
much  spoken  of  in  the  argument,  is  thus  out  of  the  case.  In 
this  connection  we  may  as  well  refer  to  the  answers  of  the 
judgment  creditors,  who  were  made  parties  defendant  to  the 
bill  of  complaint. 

Sebre  Howard  recovered  a  judgment  in  the  United  States 
district  court,  on  the  28th  November,  1859,  against  the  La 
Crosse  &  Milwaukee  Railroad  Company,  for  the  sum  of 
$16,379.86  ;  and  Graham  &  Scott,  a  judgment  in  a  state  court 
of  Wisconsin,  on  the  25th  November,  1858,  against  the  same 
company  for  the  sum  of  $29,820.71;  and  another  judgment  in 
the  same  court  on  the  21st  September,  1858,  for  the  sum  of 
$11,181.15  ;  and  also  a  judgment  against  the  same  company 


imoNSOX   V.   LA  CROSSE  &  MILWArKKK  ItAII.ItoAD  CO.       387 

in  the  United  .States  distriel  eourt,  on  the  1  1  th  Jannary,  ISIH), 
for  the  sum  of  $44,413.18.  This  hittei' judninenl  appears  from 
the  answer,  as  we  understand  it,  to  luive  l)i'en  loiiiKhMl  on  the 
two  ))revious  judgments  in  the  state  court.  Now.  it  a]tj)i'ars 
that  each  of  these  judo-ments  were  recovered  after  the  <hite  of 
the  third  mortgage  of  the  La  Cros.se  it  Milwaukee  Company, 
upon  the  foreclosure  of  which  the  Milwaukee  &  Minnesota 
Company  was  formed.  The  liens  of  these  judgments  were 
subsequent  to  this  mortgage,  and  were  cut  off  ])y  its  foi-eclos- 
ure.  Indeed,  the  judgment  of  Howard,  of  Xovend)er,  ISoS, 
and  the  last  judgment  of  Graham  &  Scott,  which  was  recov- 
ered in  18GU,  never  were  liens  upon  any  interest  in  the  road 
of  the  La  Crosse  &  Milwaukee  Company,  the  defendants  in  the 
judgments,  as  the  equity  of  redemption  had  ali'eady  passed  to 
the  purchaser  under  the  sale  to  Barnes  in  the  foreclosure  of 
the  third  mortgage,  and  afterwards  became  vested  in  the  Mil- 
waukee &  Minnesota  Company.  These  judgment  creditors, 
therefore,  according  to  their  answers,  have  no  interest  in  the 
subject-matter  of  this  litigation.  We  may  add  that,  as  repli- 
cations were  filed  to  the  answers,  the  proof  of  these  judgments 
should  have  been  produced  at  the  hearing.  But  the  only 
proof  of  them  that  we  have  found  in  the  record  is  in  a  list  of 
judgments  annexed  to  the  report  of  the  master.  Tiu-y  were 
material,  and  were  put  in  issue  by  the  replication. 

These  answers  of  the  judgment  creditors  being  thus  disposed 
of,  the  issues  in  the  case  are  brought  down  to  those  raised  by 
the  answers  of  Rockwell  and  Fleming,  in  the  name  of  the 
Milwaukee  tt  Minnesota  Compan}',  which  we  have  agreed  to 
consider  rather  by  indulgence  than  as  matter  of  strict  right, 
as  the  answers  of  the  individual  stockholders.  And  this 
brings  us  to  an  examination  of  what  may  be  called  the  merits 
of  the  case. 

Before  we  take  up  the  questions  presented  by  these  answers 
to  the  bill  which  bear  upon  the  merits,  it  will  be  proper  to 
refer  to  some  matters  there  presented,  and  very  much  di.scussed 
on  the  argument,  which,  in  our  judgment,  should  be  laid  en- 
tirely out  of  the  case,  as  tending  onh'  to  confuse  and  embarrass 
the  real  questions  involved.  We  refer  to  those  parts  of  the 
answers  which  relate  to  the  dealings  between  the  La  Cro.sse  & 
Milwaukee  Company  and  Chamberlain,  in  which  the  com- 
plainants in  this  suit  were  not  concerned,  and  with  which 
they  had  no  connection,  as,  for  instance,  the  lease  of  tlie  road 
22 


3^8  EQUITY    PLKADIXG. 

to  Chambcilain,  and  the  allejuation  of  fraud  against  him  and 
against  the  company  in  conducting  the  business  of  running 
the  road  under  this  lease.  Also,  in  respect  to  other  contracts 
between  these  parties  in  relation  to  the  indebtedness  of  the 
company  to  Chamberlain,  and  to  the  building  and  comj)letion 
of  unfinislied  portions  of  the  road,  and  equip|)ing  it  with  the 
rolling  stock  for  use.  These  relate  to  the  dealing  of  the  mort- 
gagor, the  La  Crosse  &  Milwaukee  Compan}',  with  a  third 
person,  over  which  the  complainants,  as  mortgagees,  had  no 
control,  and  for  which  they  were  not  responsible.  Tliese 
dealings  were  subsequent  to  the  execution  and  lien  of  the 
mortgage,  and  could  not  affect  |)i'ejudicially  the  rights  of  the 
mortgagees.  They  had  no  intei'est  in  the  earnings  of  the 
road,  or  concern  in  the  appropriation  of  them,  until  the  filing 
of  the  bill  and  the  appointment  of  a  receiver. 

The  only  matters,  tlieretbre,  set  forth  in  these  answers  and 
in  the  |)r'oofs,  which  have  any  bearing  on  tlie  merits,  are  :  1. 
The  alleo-ation  that  Chambei'lain  received  from  the  J^a  Crosse 
&  Milwaukee  Company  two  hundred  of  the  bonds  secured  by 
this  mortgage  fraudulently  and  without  consideration.  2. 
That  S.  R.  Foster  received  one  hundred  of  the  bonds  in  the 
same  way.  3.  That  J.  T.  fSoutter,  one  of  the  trustees,  received 
fifty-five  of  them,  and  refu.sed  to  deliver  them  to  the  company. 
4.  That  Greene  C.  Bronson,  the  other  trustee,  received  fifteen 
for  the  stock  of  the  company.  5.  That  Prentiss  Dow,  an  offi- 
cer of  the  company,  received  fourteen  for  less  than  $1,000. 
And  ().  That  Chamberlain,  who  had  covenanted  in  the  lease 
of  the  road  from  the  comi)any,  to  apply  the  proceeds  derived 
from  the  use  of  it  to  the  payment  of  the  interest  acc-ruing  on 
the  bonds,  withheld  the  payment  in  pursuance  of  a  fraudulent 
arrangement  with  the  trustees,  or  with  their  agents,  for  the 
purpo.se  of  bringing  about  a  foreclosure  of  the  mortgage,  that 
he  might  be  enabled  to  purchase  the  road. 

Tliese  are  the  allegations  that  bear  upon  the  merits  of  the 
controversy,  and  deserve  to  be  considered.  We  shall  not, 
however,  incumber  this  opinion  with  any  very  detailed  expla- 
nation of  them,  but  shall  briefly  refer  to  the  proofs  relating  to 
each  of  these  charges. 

1.  As  to  Chamberlain.  It  appears  that  he  held  a  large 
claim  for  damages  against  the  company,  on  account  of  their 
failure  to  fulfill  contracts  made  with  him  to  buihl  the  western 
division  of  the  road.     The  work  on   the  road    was  suspended 


BRONSOX   V.    LA   CK0SS8K  &  MILWA  LK  KK  KAU.KOAD  CO.       OKi\) 

by  reason  of  tlii.s  failure.  And  in  the  fall  of  1857,  upon  the 
issue  of  the  bends  of  the  eonipany,  under  this  seeond  niort- 
gaoe,  an  arianoenient  .was  enleivd  into  by  the  eonipany,  by 
whieh  he  reeeived  these  two  hundred  bonds,  at  fifty  cents  on 
the  dollar,  towards  paynR'Ut  of  this  claim. 

2.  As  to  iS.  li.  Foster,  lie  had  loaned  the  company  over 
$150,000  and  had  taken  their  bonds  as  security,  and,  among 
others,  the  one  hundred  in  question.  It  aj)pcar.s  that,  at  a 
meeting  of  the  board  of  directors,  24th  May,  1858,  the  matter 
between  them  was  adjusted  by  delivery  of  forty  land-grant 
bonds  to  Foster. 

3.  As  to  T.  J.  Soutter.  The  lifty-live  bonds  in  controversy 
between  him  and  tiie  company  were  settled,  as  appears  by  a 
receipt  of  their  chairman  and  vice-president,  on  14th  Septem- 
ber, 1858,  by  the  delivery  of  other  bonds  to  the  company. 

4.  As  to  G.  C.  Bronson.  He  had  purchased  $15,000  of 
stock,  one  hundred  and  fifty  shares  from  the  company,  in  the 
sj)ring  of  1857,  and  paid  eighty  cents  cash  on  the  dollar,  the 
president  at  the  time  agreeing  that  the  company  would 
repurchase  it  at  the  same  rate  at  any  time  thereafter  if  he 
should  wish  to  suri'ender  it  back.  The  company  Avas  doubt- 
less pressed  for  money  at  the  time.  At  a  meeting  of  the  board 
of  directors  on  the  2d  of  September,  1858,  it  was  resolved  that 
it  would  take  into  consideration  the  stock  theretofore  jmr- 
chased  by  Judge  Bronson,  as  lie  rendered  many  services  to 
the  company  for  which  he  had  received  no  compensation  ; 
and  afterwards,  in  September  of  the  same  year,  it  appears  that 
the  president  of  the  company,  who  had  induced  him  to  pur- 
chase the  stock,  received  it  back  and  delivered  to  him  the 
fifteen  bonds  in  question.  The  truth  of  the  case,  therefore,  is, 
that  instead  of  receiving  from  the  company  the  money  he  had 
advanced  for  the  stock,  according  to  their  agreement,  he  re- 
ceived in  place  of  it  only  bonds  of  the  company  of  less  than 
half  the  value  ;  and,  as  it  a])})ears,  nothing  for  his  legal 
advice  and  services. 

5.  As  to  Prentiss  Dow.  It  appears  that  but  thirteen  bonds 
had  been  received  by  him,  and  for  which  he  paid  the  com- 
pany, at  the  time,  $11,400  in  cash,  stock  and  other  bonds,  and 
was  afterwai'ds  engaged  in  its  service  as  agent,  settling  claims 
against  the  com])any. 

In  this  connection,  it  is  proper  to  refer  to  the  terms  as  pub- 
lished in  a  circular  by  the  La  Crosse  &  Milwaukee  Company, 


340  EQUITY    PLEADING. 

and  under  which  these  bonds  were  negotiated  and  put  into 
circulation.  Tliis  paper  is  dated  August  10,  1857.  The  com- 
pany state  that  the  importance  of  completing  the  road  this 
season  to  the  junction  of  the  western  division  (sixty  miles  from 
Portage),  by  which  they  would  not  onW  control  the  coining 
winter's  travel  of  the  Upper  Mississippi,  but  receive  over  three 
hundred  thousand  acres  of  the  land  grants,  have  determined 
the  board  of  directors  to  place  before  the  stock  and  bondholders 
extraordinary  inducements  to  furnish  the  means ;  that  the 
sum  of  $400,000  would  be  required.  To  obtain  this  sum,  the 
company  now  offers  the  holders  of  its  stock  and  of  unsecured 
bonds,  a  new  issue  of  one  million  of  eight  per  cent,  bonds,  etc. 
The  terms  proposed  are  to  receive  in  payment  for  a  bond  of 
$1,000,  $400  in  cash,  and  the  like  sum  in  the  stock  or  unse- 
cured bonds  of  the  com})any.  It  was  upon  these  terms  that 
the  directors  went  into  the  market  in  the  city  of  New  York 
and  elsewhere  for  the  purpose  of  negotiating  the  bonds  which 
now  constitute  the  subject  of  litigation. 

6.  As  to  the  charge  of  collusion  of  the  complainants  with  Charn- 
berlain  in  the  proceedings  to  foreclose  the  mortgage.  This  allega- 
gation  is  founded  upon  an  agreement  entered  into  with  Cham- 
berlain on  the  13th  of  November,  1859.  At  the  time  of  this 
agreement  he  was  in  possession  of  the  road  and  in  the  receipt 
of  its  earnings,  and  the  obvious  object  of  it,  on  the  part  of  the 
trustees,  was  to  procure  the  control  of  the  net  proceeds  of  its 
earnings,  j)ending  the  proceedings  of  foreclosure.  For  this 
purpose,  Chamberlain  agreed  to  deposit  the  whole  of  tlie 
earnings  with  the  agent  of  the  trustees  from  day  to  day  ;  and 
the  trustees,  on  theii-  part,  agreed  to  appropriate  them  to  the 
objects  and  uses  provided  for  in  the  lease,  as  the  exigencies 
an^  proper  working  of  the  road  might  require.  The  trustees, 
in  order  to  secure  the  fidelity  of  the  officers  and  agents  of 
Chamberlain  connected  with  the  earnings  of  the  road  and  the 
receipts  of  its  revenues,  stipulated  for  a  supervision  and  con- 
trol over  these  persons  and  for  the  discharge  of  any  of  them 
from  the  service  in  case  of  a  dereliction  of  duty.  They  pro- 
vided, also,  for  access  to  the  books  and  papers  relating  to  the 
revenues,  management  and  running  of  the  road  ;  also,  for  the 
appointment  of  a  receiver  in  case  of  the  non-fulfillment  of  the 
agreement  on  the  part  of  Chamberlain.  These  provisions 
were  very  important,  as  the  revenues  of  the  road,  according  to 
the  terms  of  the  lease,  after  covering  running  expenses  iind 


BRONSOX   V.   LA  CROSSK  A    MII.WArk' KK   RAILROAD  CO.       311 

paying  the  interest  on  prior  incuinhrances,  were  to  be  ajijilicd 
to  the  (liscliaroe  of  the  intt-rest  on  these  seeond  mortgage 
bonds.  Tlie  interest  then  (hie  on  thei;i  amounted  to  $1(),<)(J0. 
It  was  also  agreed  that  tlie  proeeedings  of  foreclo.sure  shouhl 
be  condueted  amicably  ;  that  is,  no  unreasonable  o})position 
should  be  made  to  them  by  Chamberlain.  It  was  further 
agreed  that  the  sale  should  be  made,  if  })racticable,  subject  to 
the  lease  of  Chamberlain,  and  that  no  opi)osition  should  be 
made  to  his  })Ui'chnse  of  the  road  at  the  sale  under  the  fore- 
closure ;  but  the  trustee;;  expressly  reserved  the  right  to  bid 
at  the  sale  for  the  protection  of  the  bondholders.  The  trustees 
also  agreed  that  in  case  Chamberlain  should  become  the  pur- 
chaser, they  would  extend  a  credit  of  nine  and  twenty-four 
months  u];on  so  much  of  the  interest  as  had  become  due. 

It  is  supj)osed  tliat  the  arrangement  was  entered  into  for 
the  fraudulent  purpose  of  enabling  Chamberlain  to  purchase 
the  road  at  the  foreclosure  sale,  and  thereby  cut  off  subsequent 
incumbrances,  and  especially  the  rights  and  interests  of  the 
Milwaukee  &  Minnesota  Company,  formed  under  tlie  third 
mortgage.  But  there  is  no  evidence  of  this  charge  in  the 
proofs,  nor  even  of  any  previous  dealings  between  the  parties 
tending  to  this  conclusion.  They  came  together  for  the  fii'st 
time  after  the  trustees  had  determined  to  foreclose  the  mort- 
gage for  default  in  the  payment  of  interest,  and  finding 
Chambei'lain  in  tlie  possession  of  the  road,  and  refusing  to 
deliver  it  over  to  the  trustees,  as  provided  for  in  the  mortgage, 
but,  on  the  contraiy,  insisting  upon  his  right  to  run  the  same 
pending  the  legal  proceedings,  it  is  not  strange  that  the  trus- 
tees should  have  endeavored  to  arrange  with  him  for  a  su})er- 
vision  and  control,  in  the  mean  time,  over  the  earnings  and 
management  of  the  road,  and  that  he  should  ibrbear  any  un- 
reasonable opjjosition  to  the  foreclosure  suit.  And  as  to  the 
provision  relating  to  the  j)urchase  in  case  of  a  sale,  there  is 
nothing  in  it  interfering  with  any  rights  that  belonged  to 
the  trustees,  or  to  the  prejudice  of  third  parties,  the  judgment 
creditors,  or  company  formed  under  the  third  mortgage.  In 
a  word,  the  arrangement  was  highly  beneficial  to  the  bond- 
holdei's  represented  by  the  trustees,  and  prejudicial  to  no  one 
concerned  in  the  foreclosure  suit. 

We  shall  not,  however,  dwell  longer  on  this  branch  of  the 
case  :  indeed,  much  that  we  liave  thus  far  said  has  been  rather 
by  way  of  explanation,  and    for   the   pui'pose  of  clearing   it  of 


842  EQUITY    PLEADING. 

matters  and  issues  that  do  not  belong  to  it,  and  liave  served 
only  to  eont'use  and  embarrass  its  consideration.  In  view  of 
this  object  and  ))urpose,  we  have  referi'ed  to  the  two  answers  of 
the  stockholders,  Rockwell  and  Fleming,  and  have  endeavored 
to  separate  the  irrelevant  matter  from  that  which  bore  upon 
the  merits,  so  as  to  confine  the  examination  to  the  latter, 
namely,  to  tlie  charges  against  the  validity  of  the  bonds  im- 
peached, of  the  number  of  some  three  hundred  and  eighty,  in 
the  hands,  or  which  passed  into  the  hands,  of  several  individ- 
uals named,  and  have  shown,  as  we  think,  bv  a  reference  to 
the  proofs,  that  these  charges  are  not  well  founded.  Tiie  gen- 
eral and  sweeping  allegations  against  the  other  portion  of  the 
bonds,  without  sj)ecitication  or  identity,  we  have  not  s{jecially 
noticed.  These  cliarges  are  too  general  to  be  entitled  to  con- 
sideration, and  the  proofs  relied  on  are  as  general  and  indefi- 
nite as  the  allegations.  We  have  also  shown  that  the  judg- 
ment creditors  who  appeared  and  answered  have  no  interest  in 
the  matters  in  controversy:  and,  lastly,  that  the  charges  of  a 
fraudulent  collusion  between  the  trustees  and  Chamberlain 
rest  upon  suspicion  instead  of  upon  proofs. 

We  now  come  to  a  branch  of  the  case  which  presents  a  more 
conclusive  answer  to  all  the  charges,  whether  in  allegations  or 
in  proofs  of  the  respondents,  and  overrides  all  other  views  that 
may  or  can  be  taken  of  them.  As  we  have  seen,  this  tiiird 
mortgage,  under  which  the  Milwaukee  &  Minnesota  Com- 
pany was  formed,  was  executed  and  delivered  to  Barnes,  the 
trustee,  on  the  22d  June,  1858,  to  .secure  the  payment  of  an 
issue  of  12,000,000  in  bonds,  and  a  supplement  to  this  mort- 
gage was  executed  to  the  same  trustee,  on  the  11th  August  fol- 
lowing. These  two  mortgages,  or  rather  one  in  two  [)arts, 
were,  in  express  terms,  made  subject,  among  other  incumbrances 
mentioned,  to  the  bonds  secured  by  a  second  mortgage  on  the  east- 
ern division  of  the  road,  to  the  amount  of  $1,000,000.  Again, 
the  bonds  issued  under  this  third  mortgage,  one  of  which  is 
in  the  proofs,  have  an  indorsement  on  the  back,  as  follows: 
"  State  of  Wisconsin,  La  Crosse  &  3Iihvaukee  Railroad  Company, 
tiiird  mortgage  sinldng  fund  botid,  seven  per  cent.,  etc.,"  subject, 
among  other  things,  "to  a  second  mortgage  on  the  same  line  of 
7-oac/o/ $1,000,000"." 

At  the  time  this  third  moi'tgage  was  executed  and  thus 
made  subject  to  the  second  mortgage  bonds,  all  these  bonds 
had  been  negotiated  by  the  company,  and  were  in  circulation 


BRONSON  V.   LA  CROSSE  &  M  1  l.W  AT  K  i;i:   IIA  1 1.Kc  lA  D  CO.        Oio 

in  the  business  community.  Tlicy  wow  all  nc^otiati'd  in  (he 
months  of  Septeml)er,  ()ctol)er,  Novemher  and  December, 
1867.  This,  the  company,  of  course;  well  knew  at  the  time 
of  the  execution  of  the  third  mort<>a<ie,  and  knew,  also,  of  tiie 
circumstances  attending  the  negotiation  of  them.  'J'hey  liad 
received  and  were  in  the  enjoyment  of  the  avails  of  them,  and 
with  this  knowledge,  and  under  these  circumstances,  the  third 
mortgage,  and  the  bonds  issued  under  it,  were  made  in  ex- 
press terms  subject  to  the  j)ayment  and  satisfaction  of  the 
bonds  i.ssued  under  the  second.  All  {)ersons,  therefore,  taking 
these  third  mortgage  bonds,  or  coming  in  under  the  mortgage, 
took  them  and  came  in  with  a  lull  knowledge  that  the  mort- 
gagor had  made  the  security  subject  to  the  prior  lien  and  in- 
debtedness. Even  if  there  had  been  any  valid  objection  to 
these  bonds  under  the  second  mortgage,  it  was  competent  for 
the  obligor  to  waive  them,  and  no  better  proof  could  be  fur- 
nished of  the  waiver  than  the  acknowledgment  of  tlie  full  in- 
debtedness, by  making  the  subsecjuent  security  subject  to  it. 
This  was  a  question  that  belonged  to  the  obligor  to  determine 
for  himself  when  giving  the  third  mortgage  ;  but,  besides  this, 
what  riglit  have  those  coming  in  under  it  to  complain  ?  They 
come  in  with  full  notice  oi'  the  acknowledgment  of  the  in- 
debtedness and  j)revious  lien  ;  and,  especially,  what  right 
have  the  Milwaukee  and  Minnesota  Com})any  to  complain, 
who  purchased  the  equity  of  redemption  through  Barnes,  their 
agent,  subject  to  the  previous  incumbrances  of  $1,000,000. 
They  have  the  benefit  of  that  incumbrance  by  an  abatement 
of  that  amount  in  the  price  of  the  [)urchase. 

Without  })ursuing  the  case  further,  we  are  satislii'd  the  de- 
cree of  the  court  below,  reducing  the  indebtedness  of  the  La 
Crosse  &  Milwaukee  Company  to  the  bondholders,  is  erroneous, 
and  that  the  decision  should  have  been  for  the  lull  amount  of 
§1,000,000,  and  interest. 

We  shall  therefore  reverse  the  decree  and  remit  the  cause  to 
the  circuit  court  of  tlie  United  States  for  the  district  of  Wis- 
consin, with  directions  to  enter  a  decree  for  all  tlie  interest  due 
and  secured  by  the  moilgage,  with  costs  ;  that  the  court  ascer- 
tain the  amount  of  moneys  in  the  hands  of  the  receiver  or  re- 
ceivers from  the  earnings  of  the  road  covered  by  the  mortgage, 
which  ma}'  be  ap|)licable  to  the  discharge  of  thr  interest,  and 
a])ply  it  to  the  sanie ;  and  that  if  the  moneys  thus  ai)i)lied  are 
not  sufficient  to  discharge  the   interest  due  on   the   1st  day  of 


344  EQUITY    PLEADING. 

March,  1864,  then  to  ascertain  the  bahmce  remaining  due  at 
tliat  date,  and  in  case  such  balance  is  not  paid  within  one  year 
from  the  date  of  the  order  of  the  court  ascertaining  it,  then  an 
order  shall  be  entered  directing  a  sale  of  the  mortgaged  prem- 
ises, under  the  direction  of  the  court,  and  on  bringing  the  pro- 
ceeds into  court,  they  shall  be  applied  to  the  payment  of  the 
balance  of  interest ;  and  if  they  exceed  such  balance,  shall  be 
apj)lied  to  the  future  accruing  interest  down  to  the  sale  ;  and 
if  they  exceed  that,  to  the  princi[)al  of  the  bonds,  in  case  the 
bondholders  assent,  or  pro  rata  to  those  who  may  assent,  and 
an}^  remaining  balance  of  the  proceeds  to  be  invested,  under 
the  direction  of  the  court,  for  tlie  payment  of  future  accruing 
interest,  and  ultimately  the  i)rincipal.  And  further,  that  in 
case  the  interest  upon  the  bonds  is  paid  without  a  sale,  the  de- 
cree shall  remain  as  security  for  subsequent  accruing  interest, 
and  ultimately  for  the  principal.  And  further,  that  the  court 
may  pay  out  of  moneys  in  the  hands  of  the  receiver,  or  out  of 
the  proceeds,  the  taxed  costs  of  the  trustees  in  the  proceedings 
for  the  foreclosure  of  the  mortgage,  not  taxed  and  received 
from  the  defendants  in  those  proceedings,  and  also  such  counsel 
fees  in  behalf  of  the  trustees  as  to  the  court,  in  its  discretion, 
may  seem  right  to  allow. 
Decree  accordinglij. 

PEAY  V.  SCHENCK. 
(Circuit  Court  for  Arkansas  :  1  Woolworth,  175-191.     1868. ) 

Opinion  by  Miller,  J. 

Statement  of  Facts. — This  is  a  bill  in  chancery  brought 
by  the  complainant  to  quiet  his  title  to  certain  i-eal  estate,  as 
against  Peay,  and  for  ]>artition  thereof,  as  against  Bliss.  Tiie 
title  which  he  asks  to  have  quieted  and  confirmed  is  derived 
from  a  sale  for  taxes  levied  upon  the  real  estate  mentioned  in 
the  bill,  under  the  act  of  congress  of  IStil,  and  the  amenda- 
tory act  of  1862,  pas.sed  to  enforce  the  collection  of  the  tax  in 
the  insurrectionary  districts. 

The  defendant  Peay  files  his  answer  and  crossbill  wlien  the 
proceedings  under  which  the  plaintift"  claims  were  had,  in 
which  he  states  that  he  was,  and  still  is,  the  true  owner  of  the 
lots  in  controversy  ;  that  for  several  reasons  detailed  in  the 
answer  and  cross-bill,  the  proceedings  were  void  and  conferred 
no  title  on  Bliss,  the  ])urchaser  at  the  tax  sale;  and  that  the 
plaintiff,  who  purchased  from  Bliss,  is  therefore  without  title. 


I'KAY     V.    SCIIKNCK.  345 

He  makes  Bliss,  as  well  as  the  plaiiitill',  a  (lefeiulaiit  to  this 
cross-bill,  and  |)ra_vs  that  the  tax  sale  may  bo  declared  void, 
and  his  title  ciuieted,  and  the  possessioi'i  of  the  property,  wliieh 
had  been  delivered  to  Bliss  by  the  tax  coniniissioner,  restored 
to  him.  He  also  ])rays  for  the  appointment  of  a  receiver 
pending  the  litigation,  and  for  other  relief.  The  plaintilf  and 
Bliss  filed  a  denmrrer  to  this  cross-bill,  based  on  the  proposi- 
tion, that  the  bill  cannot  be  entertained  in  this  court,  because 
Peay  and  Bliss  are  both  citizens  of  the  state  of  Arkansas. 

If  this  were  an  original  bill  brought  by  the  plaintiff  therein, 
as  an  independent  measure  of  relief,  it  could  not  be  sustained. 
Bliss  was  the  sole  purchaser,  at  the  tax  sale,  of  the  property  in 
dispute,  and  the  certificates  of  sale  are  in  his  name,  and 
Schenck,  \vho  alleges  a  right  in  himself  to  only  an  undivided 
fourth  part,  derived  his  claim  by  purchase  from  Bliss.  It  is 
clear,  therefore,  that  as  between  Peay  as  plaintiff,  and  Bliss  as 
defendant,  both  being  citizens  of  Arkansas,  no  original  and 
indej)endent  suit  of  tliis  character  can  be  maintained  in  the 
federal  courts. 

On  the  other  hand,  it  is  insisted  that  Schenck,  who  is  a  citizen 
of  Ohio,  and  the  plaintiff  in  the  original  bill,  asks,  as  against 
Bliss,  merely  a  partition  of  the  premises,  and  that  Peay  has 
no  interest  in  this  branch  of  the  case;  that  the  princi|)al  relief 
sought  by  him  is  a  decree  quieting  his  title  as  against  Peay  ; 
and  that  in  this  branch  of  the  case,  Bliss'  interests  consist  with 
the  ])laintiff 's,  and  that  it  thence  appears  that  the  interests  of 
Schenck  and  Bliss  are  equally  adverse  to  Pea^^'s.  It  is  also 
said  that  the  matter  of  the  cross-bill  is  strictly  defensive,  and 
necessary  to  be  presented  in  order  to  bring  before  the  court 
fully  the  defenses  of  the  plaintiH'  therein  to  the  original  bill. 

If  this  be  true,  the  demurrer  must  be  overruled,  for  it  is  th(^ 
established  doctrine  of  this  court,  that  where  a  party  defend- 
ant finds  it  necessary  for  his  defense,  and  to  })revent  an  in- 
justice resulting  to  him  from  the  position  in  which  the  ca.se 
stands,  he  is  at  liberty  to  file  a  cross-bill,  if  the  case  is  j)ending 
in  chancery,  or  an  original  bill,  if  the  case  is  one  at  law. 
although  the  })arties  defendant  to  said  bill,  or  some  of  them, 
may  Ix^  citizens- of  the  same  state  with  himself  The  only 
limitations  to  this  princijtal  are,  that  the  bill  nuist  be  neces- 
sary to  the  dcirnsc  ol  the  party  filing  the  bill,  and  it  must  be 
filed  against  i)arlics  already  before  the  court,  and  subject  to  its 
jurisdiction,  cither  as  plaintiil's  or  .di'fendants  in  the  oi'iginal 


34G  EQUITY    PLEADING. 

suit.  Dunn  v.  Clarke,  8  Pet.,  1  ;  Clai'ke  r.  Matliewson,  12 
Pet.;  164  ;  Cross  v.  De  Valle,  1  Wall.,  1. 

And  in  deterniining-  whether  a  hill  is  original  and  inde- 
pendent, or  is  ancillary  and  auxiliary  to  a  matter  already 
before  the  court,  we  are  not  confine<l  to  the  line  which,  in 
chancery  pleadings,  divides  original  bills  from  cross-hills  and 
supplemental  bills,  but  may  look  to  the  essence  of  the  matter, 
and  to  princij)les  which,  as  regards  parties,  the  federal  courts 
haye  adopted  in  reference  to  their  jurisdiction.  Minnesota  Co. 
V.  St.  Paul  Co.,  2  Wall.,  (J32  ;  Freeman  v.  Howe,  24  How.,  450. 

The  main  question  raised  by  the  oidginal  bill  is  the  validity 
of  the  title  conferred  by  the  tax  sale,  and  the  relief  sought  is 
to  have  that  title  quieted  and  confirmed.  The  cross-bill  refers 
only  to  matters  connected  with  the  validity  of  the  same  tax 
title,  and  prays,  as  its  sole  relief,  to  iiave  it  set  aside  and 
declared  void.  In  reference  to  the  ])artition,  the  cross-bill  is 
silent,  and  the  relief  asked  concerning  a  receiver  is  purely  in- 
cidental to  the  progress  of  the  suit,  and  could  be  had  without 
the  aid  of  the  cross-bill  on  mere  petition.  It  seems  to  us, 
therefore,  that  the  cross-bill  is  essentially  a  mode  of  defense 
ap])ropriate  to  the  case;  that  it  is  necessary  to  a  complete  de- 
termination of  the  controversy  brought  before  the  court  by  the 
original  bill ;  that  it  is  ancillary  to  the  main  cause;  and  that, 
as  it  brings  no  new  parties  before  the  court,  it  is  not  liable  to 
the  objection  taken  by  the  demurrer.  The  demurrer  is  there- 
fore overruled. 

[Note. — Only  so  much  of  this  case  is  reported  as  relates  to  Equity  Pleading 
and  Practice.] 


CHAPTER  XIII. 

REHEARIXGS    AND    BILLS    OF    REVIEW. 

liule   SS. 

Every  petition  for  a  reliearing  shall  contain  the  special 
matter  or  cause  on  which  such  rehearing  is  applied  for,  shall 
be  signed  b}'  counsel,  and  the  facts  therein  stated,  if  not  ap- 
parent on  the  record,  shall  be  verified  bv  the  oath  of  the  jiarty 
or  by  some  other  person.  No  hearing  shall  be  granted  after 
the  term  at  which  the  final  decree  of  the  court  shall  have  been 
entered  and  recorded,  if  an  appeal  lies  to  the  Suprenie  Court. 
But  if  no  appeal  lies,  the  petition  may  be  admitted  at  any 
time  before  the  end  of  the  next  term  of  the  coui't,  in  the  dis- 
cretion of  the  court. 

DEXTER  r.   ARNOLD. 
(Circuit  Court  for  Rhode  Island:  5  Mason,  303-:13l'.     1829.) 

Statement  of  Facts. — Hearing  of  a  petition  to  file  a  bill 
for  the  purpose  of  having  a  review  of  a  decree  rendered  at  a 
former  term  of  the  court.  The  petitioner,  in  whose  favor  the 
previous  decree  had  been  rendered  against  Thomas  Arnold, 
the  husband  of  the  present  defendant,  for  an  accounting,  and 
under  which  he  had  been  paid  ^500. ()(j,  claimed  that  since 
that  time  neu^  facts  liad  been  discovered,  showing  that  several 
sums  of  money  had  come  into  the  hands  of  Thomas  Arnold, 
not  accounted  for  by  the  master,  and  that  several  claims  had 
been  allowed  in  fovor  of  said  Arnold  by  the  mastei",  which, 
in  the  light  of  this  subsequent  evidence,  should  not  have  been 
allowed. 

Opinion  by  Story,  .J. 

The  present  is  a  somewhat  novel  jjrocccding  in  tliis  ciiTuit; 
and  I  am  not  aware  that,  in  any  other  circuit  of  the  Tnited 
States,  any  general   course  of  practice  has    })revailed    which 

(  347  ) 


348  EQUITY    PLEADING. 

would  supersede  the  necessity  of  acting  upon  this,  as  a  case  of 
first  impression,  to  be  decided  upon  the  general  principles  of 
courts  of  equity. 

It  comes  before  the  court  upon  a  petition  for  leave  to  file  a 
bill  of  review  of  a  decree  rendered  in  this  court  at  November 
term,  1823,  principally  upon  the  ground  of  a  discovery  of  new 
matters  of  fact.  The  petition  was  filed  at  November  term, 
1827,  and  affidavits  have  been  read  in  support  of  it.  Counter- 
affidavits  have  also  been  admitted  on  the  other  side,  not  for 
the  purpose  of  investigating  or  absolutely  deciding  upon  the 
truth  of  the  statements  in  the  petition,  but  to  present,  in  a 
more  exact  shape,  some  of  the  circumstances  growing  out  of 
the  original  proceedings,  which  may  assist  the  court  in  the 
preliminary  discussion,  whether  leave  ought  to  be  granted  to 
file  the  bill  of  review. 

This  course,  though  not  very  common,  is,  as  I  conceive, 
perfectly  within  the  range  of  the  authority  of  the  court  (see 
Livingston  v.  Hubbs,  3  Johns.  Ch.,  124  ;  Norris  v.  Le  Neve,  3 
Atk.,  25)  ;  and  may  be  indispensable  for  a  just  exercise  of  its 
functions  in  granting  or  withholding  the  review.  If,  indeed, 
it  were  doubtful,  in  case  the  bill  of  review  should  be  allowed, 
whether  the  defendants  could  by  plea  or  answer  traverse  the 
allegation  in  such  bill  tliat  tlie  matter  of  fact  is  new,  I  should 
not  hesitate  to  inquire,  in  the  most  ample  manner,  into  the 
truth  of  such  allegation,  before  the  bill  was  granted,  in  order 
to  prevent  gross  injustice.  But  as  every  such  bill  of  i-eview 
must  contain  an  allegation  that  the  matter  of  fact  is  new,  it 
seems  to  me  clear  upon  principle,  that,  as  it  is  vital  to  tlie 
relief,  it  is  travel^sable  by  plea  or  answer,  and  must  be  proved 
if  not  admitted  at  the  hearing.  In  Hanbury  v.  Stevens  (1784), 
cited  by  Lord  Redesdale  (Kedesd.  PL  Eq.,  80),  [3d  ed.,  70], 
the  court  is  reported  to  have  held  that  doctrine.  The  case  of 
Lewellen  v.  Mackworth,  2  Atk.,  40  ;  Barnard,  Ch.,  445,  though 
very  imperfectly,  and,  as  I  should  think,  inaccurately,  re- 
ported, seems  to  me  to  su|)port  the  same  conclusion.  It  has 
been  relied  upon  by  the  best  text- writers  for  that  purpose. 
Redesd.  PI.  Eq.,  231  (3d  ed.);  Coop.  Eq.  PL,  305  ;  Montague, 
Eq.  PL,  335,  note;  id.,  336;  2  Montague.  Eq.  PL,  227,  note 
100.  Lord  Redesdale,  in  his  original  work  on  Equity  Plead- 
ings (Redesd.  Eq.  PL,  80,  2d  ed.),  stated  the  point  as  one 
which  may  be  doubted;  but  upon  principle  I  cannot  see  how 
that  can  well  be.     And  in  the  last  edition  (the  third),  revised 


DEXTEK    V.    ARNOLD.  349 

by  his  lor(lslii[),  I  find  that  \\v  has  (jiiestioned  the  propriety 
of  such  a  doubt.     Kedesd.  PI.  Eq.,  70  (3d  ed.). 

Before  I  proceed  to  consider  the  particuhxr  grounds  of  the 
present  petition,  it  may  be  well  to  glance  at  some  of  the  regu- 
lations which  govern  courts  of  equity  in  relation  to  bills  of 
review,  that  we  may  be  better  enabled  to  judge  of  their  a{)pli- 
cation  to  the  courts  of  the  United  States.  The  ordinance  of 
Lord  Bacon  constitutes  the  foundation  of  the  system  and  has 
never  been  departed  from.  It  is  as  follows  :  "  No  decree  shall 
be  reversed,  altered  or  explained,  bci)i(/  mice  luidcr  tlic  (jveat  seal, 
but  upon  a  bill  of  review.  And  no  bill  of  review  shall  be  ad- 
mitted except  it  contain  either  error  in  law,  appearing  in  ilie 
body  of  the  decree,  without  farther  examination  of  matters  of 
fact  or  some  neiv  matter  which  hath  arisen  after  the  decree,  and 
not  any  neiv  proof  which  might  have  been  used  ivJien  tJie  decree 
was  made.  Nevertheless,  upon  new  proof  that  is  come  to  ligld 
after  the  decree  made,  and  could  not  possibly  have  been  used  at  the 
time  when  the  decree  passed,  a  bill  of  review. may  be  grounded 
hy  the  special  license  of  the  court  and  not  otherwise."  Beame's 
Orders  in  Chancery,  1. 

A  bill  of  review,  therefore,  lies  only  when  the  decree  has 
been  enrolled  under  the  great  seal  in  chancery.  If  it  has  not 
been  so  enrolled,  then  for  error  of  law  appanait  upon  tiie  de- 
cree the  remedy  is  by  a  })etition  for  a  rehearing.  Perry  r. 
Phelips,  17  Ves.'',  173, 'l78.  But  if  tlie  ground  of  the  l)iil  is 
new  matter,  discovered  since  the  decree,  then  the  remedy  is  Ijy 
a  supplemental  bill  in  the  nature  of  a  bill  of  review,  and  a  pe- 
tition for  a  rehearing,  which  are  allowed  bv  special  license  of 
the  court.  liedsd.  Eq.  PI.  (55,  [78],  81;  Coop.  Eq.  PL,  88,  89, 
90,  91  ;  Beame's  Orders  in  Chan.,  2  and  3,  notes;  Sheffield  r. 
Duchess  of  Buckingham,  1  West.,  082  ;  Montag.  PI.  Eq.,  ch. 
12,  p.  330  ;  Norris  v.  Le  Neve,  3  Atk.,  26  ;  Perrv  v.  Phelii)s,  17 
Yes.,  173  ;  Blake  v.  Poster,  2  B.  c^-  P>eatty,  457,  4()0.  This  dis- 
tinction between  a  bill  of  I'eview  and  a  bill  in  the  nature  of  a 
bill  f)f  review,  though  important  in  l^ngland,  is  not  felt  in 
the  practice  of  the  courts  of  the  United  States,  and  perhajis 
rarely  in  any  of  the  state  courts  of  equity  in  the  Union.  I 
take  it  to  be  clear  that  in  the  courts  of  the  United  States  all 
decrees  as  well  as  judgments  are  matters  of  record,  and  are 
deemed  to  be  enrolled  as  of  the  term  in  whieli  theA'^are  passed. 
So  that  the  apj^'opriate  remedy  is  by  a   bill  of  review. 

In  regard   to  errors  of  law,  apparent  upon  the  face  of  the 


350  EQUITY    PLEADING. 

decree,  the  established  doctrine  is  tlmt  you  cannot  look  into 
the  evidence  in  the  case  in  order  to  show  the  decree  to  be 
erroneous  in  its  statement  of  the  facts,  ^riiat  is  the  proper 
office  of  tlie  court  u[)on  an  ap})eal.  But  taking  the  facts  to  be 
as  they  are  stated  to  be  on  the  face  of  the  decree,  you  must 
show  that  the  court  have  erred  in  point  of  law.  Mellish  v. 
Williams,  1  Vern.,  166 ;  Cranborne  v.  Delahav,  2  Freem., 
169  ;  Combs  v.  Prowd,  1  Ch.  Cas.,  54;  S.  C,  2  Freem.,  181  ; 
3  Rep.  Ch.,  18;  Hard.,  174;  Perry  v.  Plielips,  17  Ves.,  173; 
O'Brien  v.  Conner,  2  B  &  Beatt.,  146,  154.  If,  thereibre,  the 
the  decree  do  not  contain  a  statement  of  the  material  facts  on 
which  the  deciee  proceeds,  it  is  plain  that  there  can  be  no 
relief  by  a  bill  of  review,  but  only  by  an  appeal  to  some 
superior  ti-ibunal.  It  is  on  this  account  that  in  England 
decrees  are  usuall}'  drawn  up  with  a  sj)ecial  statement  of,  or 
reference  to,  the  material  grounds  of  fact  for  the  decree.  Combs 
V.  Prowd,  1  Ch.  Cas.,  54  \  Brend  v.  Brend,  1  Vern.,  214  ;  S.  C, 
2  Ch.  Cas.,  Kil  ;  Bonham  v.  Newcomb,  1  Vern.,  216  ;  O'Brien 
V.  Conner,  2  B.  &  Beatt.,  146,  154.  In  the  courts  of  the 
United  States  the  decrees  are  usually  general.  In  England 
the  decree  embodies  the  substance  of  the  bill,  pleadings  and 
answers  ;  in  the  courts  of  the  United  States  the  decree  usually 
contains  a  mere  reference  to  the  antecedent  proceedings  with- 
out embodying  them.  But  for  the  j)urpose  of  examining  all 
errors  of  law,  the  bill,  answers  and  other  proceedings  ai-e,  in 
our  practice,  as  much  a  part  of  the  record  before  the  court  as 
the  decree  itself;  for  it  is  only  by  a  comparison  with  the  for- 
mer that  the  correctness  of  the  latter  can  be  ascertained. 

In  regard  to  new  matter  there  are  several  considerations 
deserving  attention.  In  the  first  place  the  new  matter  must 
be  relevant  and  material,  and  such  as,  if  known,  might  prob- 
ably have  produced  a  different  determination.  Beiuiett  v. 
Lee,  2  Atk.,  520  ;  O'Brien  v.  Conner,  2  B.  &  Beatt.,  155  ; 
Portsmouth  v.  Effingham,  1  Ves.,  429.  In  other  words,  it 
must  be  new  matter  to  prove  what  was  before  in  issue,  and 
not  to  prove  a  title  not  before  in  issue  (Coop.  Eq.  PI.,  91  ;  Pat- 
terson V.  Slaughter,  Amb.,  292  ;  Young  v.  Keigl)ley,  16  Ves., 
848;  Blake  u  Foster,  2  B.  &  Beatt.,  457,  462);  not  to  make 
a  new  case,  but  to  establish  the  old  one.  In  the  next  place 
the  new  matter  must  have  come  to  the  knowledge  of  the 
party  since  the  period  in  which  it  could  have  been  used  in  the 
cause  at  the  original  hearing.     Lord  Bacon's  ordinance  says 


i)i:xTi;i;   v.    Aitxoi.D.  ',]')! 

ill  one  i);irt  it  must  ho  "  al'tci-  tlic  decivr  ;"  hut  that  seems  cor- 
rected hv  the  suhseqvu'iit  words,  "and  couhl  not  possihiy  have 
been  used  at  tlie  tiuu' when  the  deerev'  ]»assed,"  which  |)oint  to 
the  period  of  })ul)licatioii.  Lord  Mai-twicke  is  rept»rte(l  to 
have  said  that  the  words  oC  I>ord  IJacon  ai'c  (hirk  ;  hut 
tliat  the  construction  lias  l)een  that  the  lU'W  matter  nnist  Iiave 
come  to  the  knowh'd<i;e  ot"  the  party  after  jtuhliaifidii  jt<tsf«d. 
Patterson  v.  SUuiohter,  Amb.,  25)3.  The  same  doctrine  was 
held  in  Xorris  v.  i>e  Neve,  3  Atk.,  25,  34,  and  has  lieeii  con- 
stantly adhered  to  since.  A  qualiHcation  of  the  rule  ([uite  as 
important  and  instructive  is  that  the  matter  must  not  only  be 
new,  but  that  it  must  be  such  as  that  the  party,  by  the  use  of 
reasonahle  diligence,  could  not  have  known  ;  for  if  ihei'e  be 
any  laches  or  negligence  in  this  respect  that  destroys  the  title 
to  the  relief.  That  doctrine  was  exj)Ounded  and  adhered  to 
by  Lord  Eldon  in  Young  v.  Keighley,  1(5  Yes.,  348,  and  was 
acted  ui)on  hv  Lord  Abinners  in  Barrington  v.  O'Brien,  2  B. 
&  Beatt.,  140,  and  Blake  v  Foster,  2  B.  &  Beatt.,  457,  461. 
It  was  fully  recognized  by  Mr.  Chancellor  Kent,  and  received 
the  sanction  of  his  high  authority  in  Wiser  v.  Blachly,  2  .hihns. 
Ch.,488,  and  Bari'ow  v.  Jihinelander,  3  Johns.  C'h.,  120.  .\nd 
in  the  very  recent  case  of  l>ingham  v.  Dawson,  3  Jac.  ct  Walk., 
243,  Lord  Eldon  infused  into  it  additional  vigor. 

L^pon  another  point,  perhaps  there  is  not  a  uniformity  of 
opinion  in  the  authorities.  I  allude  to  the  distinction  taken 
in  an  anonymous  case  in  2  Freeman,  31,  where  the  chancellor 
said  that,  "  where  a  matter  of  fact  was  particnlai'ly  in  issue 
before  the  former  hearing,  though  you  have  nctv  proof  of  that 
matter,  upon  that  you  shall  never  have  a  bill  of  review.  I  Jut 
where  a  vew  fad  is  alleged  that  was  not  at  a  former  liearing, 
there  may  he  a  ground  lor  a  hill  of  review."  Now,  assuming 
that  under  certain  circumstances  new  niattei-  not  evidence, 
that  is,  not  in  issue,  in  the  original  cause,  hut  clearly  demon- 
strating error  in  the  decree,  may  support  a  bill  of  review,  if  it 
is  the  only  mode  of  obtaining  relief  (see  Norris  v.  Le  Neve,  3 
Atk.,  33,  35  ;  Roberts  v.  Kingsley,  1  Ves.,  238  ;  Earl  of  Ports- 
mouth V.  Lord  Eflingham,  1  Ves.,  429  ;  liedesdale,  E(|.  PL, 
67,  etc.  (last  edition) ;  1  Montag.  PL  Eq.,  332,  333  ;  Wilson  v. 
Webb,  2  Cox,  3;  Standish  v.  Kadley,  2  Atk.,  177.  See  al.-o, 
Lord  Kedesdale's  Observations  in  his  third  edition  of  his 
Equity  Pleadings,  p.  67),  still  it  must  be  admitted  that  the 
general  rule  is  that  tht;  new  matter   must  be  such   as  is  I'ele- 


352  EQUITY    PLEADING. 

vant  to  the  original  case  in  issue.  Lord  Hardwicke,  in  Norris 
V.  Le  Neve,  3  Atk.,  33,  35,  is  reported  to  have  admitted  that  a 
bill  of  review  might  be  founded  upon  new  matter  not  at  all  in 
issue  in  the  former  cause,  which  seems  contrary  to  his  opinion 
in  Patterson  v.  Slaughter,  Amb.,  293  (see  also,  Young  v. 
Keighley,  16  A'es.,  348,  354;  Blake  v.  Foster,  2  B.  &  Beatt., 
457,  462),  or  upon  matter  which  was  in  issue,  but  discovered 
since  the  hearing.  But  the  very  point  in  2  Freeman,  31,  if 
I  rightly  understand  it,  is  that  a  newly-discovered  fact  is 
ground  for  a  bill ;  but  not  newly-discovered  evidence  in  proof 
of  any  fact  already  in  issue.  This  seems  to  me  at  variance 
with  Lord  Bacon's  ordinance,  for  it  is  said  that  there  may  be 
a  review  upon  "  new  matter,  which  hath  arisen  in  time  after 
the  decree,"  and,  also,  "  upon  new  proof  that  has  come  to  light 
after  the  decree  made,  and  could  not  possibly  have  been  used  at 
the  time  when  the  decree  passed."  It  is  also  contrary  to  what 
Lord  Hardwicke  held  in  the  cases  cited  from  3  Atk.,  33,  and 
Amb.,  293.  Lord  Eldon,  in  Young  v.  Keighley,  16  Ves.,  348, 
350,  said  :  "  The  ground  (of  a  bill  of  review)  is  error  apparent 
on  the  face  of  the  decree,  or  new  evidence  of  a  fact  materially 
pressing  upon  the  decree,  and  discovered  at  least  after  publi- 
cation in  the  cause.  If  the  fact  had  been  known  l)efore  publi- 
cation, though  some  contradiction  appears  in  the  cases,  there 
is  no  authority  that  new  evidence  would  not  be  sufiicient 
ground."  That  was  also  the  opinion  of  Lord  Manners  in 
Blake  v.  Foster,  2  B.  &  Beatt,  457.  Mr.  Chancellor  Kent,  in 
Livingston  v.  Hubbs,  3  Johns.  Ch.,  124,  adopted  the  like  con- 
clusion ;  and  he  seemed  to  think  that  such  new  evidence  must 
not  be  a  mere  accumulation  of  witnesses  to  the  same  fact,  but 
some  stringent  written  evidence  or  newly-discovered  papers. 
Gilbert,  in  his  Forum  Romanum,  chapter  10,  page  186,  leans 
to  the  same  limitation,  for  he  says  that  in  bills  of  review 
"  they  can  examine  to  nothing  that  was  in  the  original  cause, 
unless  it  be  matter  happening  subsequent  which  was  not 
before  in  issue,  or  upon  matter  of  record  or  writing  not  known 
before,  for  if  the  court  should  give  them  leave  to  enter  into 
proofs  upon  the  same  points  that  were  in  issue,  that  would  be 
under  the  same  mischief  as  the  examination  of  witnesses  after 
publication,  and  an  inlet  into  manifest  perjury."  See,  also. 
Barton,  Eq.,  216  ;  Tovers  v.  Young,  Free.  Ch.,  193  ;  Taylor  v. 
Sharp,  3  P.  Will.,  371  ;  Standish  v.  Radley,  2  Atk.,  177 ; 
Chambers   v.    Greenhill,  2    Chan.,   66 ;    Thomas   v.    Harvie's 


DK\Ti:i;     V.     AKNdl.I).  .).•).) 

Heirs,  10  \\  licat.,  1 KJ.  TIktc  is  niufli  ^ood  seu^c  in  such  a 
distinction  opei'ating-  U{)on  the  discretion  of  the  c'ouit  in  refus- 
ing a  bill  of  revieu',  and  I  shouhl  be  /i>lad  to  know  that  it  has 
always  i)een  adhered  to.  It  is  certain  that  cumulative  evi- 
dence has  been  admitted,  and  even  written  evidence,  to  contra- 
dict the  testimony  of  a  witness.  That  was  the  case  of  Attor- 
ney-General V.  Turner,  And)..  587.  W'illan  /'.  W'illan,  IG 
Ves.,  72,  88,  sui)poses  that  new  testimony  of  witnesses  may  Ijo 
admissible.  If  it  be  admissible  (upon  which  1  an)  not  called 
to  decide),  it  ought  to  be  received  with  extreme  caution,  and 
only  when  it  is  of  such  nature  as  ought  to  be  decisive  proof. 
There  is  so  much  of  just  reasoning  in  the  opinion  of  the  court 
appeals  of  Kentucky  on  this  subject  that  I  should  hesitate 
long  before  I  should  act  against  it.  See  Respass  v.  McClana- 
han,  Hardin  (Ky.),  342;  Head  v.  Head,  SMarsh.  (Kv.),  121  ; 
Randolph  v.  Raiidoli)h,  1  H.  tfe  M.,  180. 

In  the  next  place  it  is  most  material  to  state  that  the  grant- 
ing of  such  a  bill  of  review  is  not  a  matter  of  right,  but  of 
sound  discretion  in  the  court.  Sheffield  v.  Duchess  of  Ikick- 
ingham,  1  West.,  082  ;  Norris  v.  Le  Neve,  3  Atk.,  33  :  Ciould 
V.  Tancred,  2  Atk.,  533.  It  may  be  refused,  therefore, 
although  the  facts,  if  admitted,  would  change  the  decree 
where  the  court,  looking  to  all  the  circumstances,  deems  it 
productive  of  mischief  to  iimiocent  parties,  or  for  any  other 
cause  unadvisable.  Bennet  v.  Lee,  2  Atk.,  528  ;  Wilson  v. 
Webb,  2  Cox,  3  ;  and  Young  v.  Keighley,  16  Ves.,  348,  are 
strong  exemplifications  of  the  principle. 

These  are  the  principal  considerations  which  appear  to  me 
useful  to  be  brought  into  y\qw  upon  the  present  occasion.  Let 
us  now  advert  to  the  grounds  upon  which  the  petition  is 
framed  and  sec  how  far  an}'  are  ap[)licable  to  them. 

The  original  bill  was  brought  against  Thomas  Arnold 
(whose  administrator  is  now  before  the  court),  for  an  account 
and  settlement  of  his  brother  Jonathan  Arnold's  estate,  upon 
which  he  had  administered.  The  case  is  reported  in  the 
third  volume  of  Mr.  Mason's  Reports,  page  284,  and  I  refer  to 
that  for  a  summary  of  the  proceedings  and  final  decree. 

In  |)referring  tlie  present  petition  the  proper  cour.se  of  pro- 
ceeding has  been  entirely  mistaken.  The  present  counsel  for 
the  {)etitioner  is  not  responsible  for  those  proceedings,  they 
having  taken  place  before  he  came  into  the  cause.  A  petition 
for  leave  to  file  a  bill  of  review  for  newly-discovered  matters 
23 


354  EQUITY    PLEADING. 

'sliould  contain  in  itself  an  abstract  of  the  former  proceedings, 
the  bill,  answers,  decree,  etc.,  and  should  then  specihcully 
state  what  the  newly-discovered  matter  is  and  when  it  first 
•came  to  the  party's  knowledge,  and  how  it  bears  on  the 
decree,  that  the  court  may  see  its  relevancy  and  the  pro})riety 
of  allowing  it.  Cooi).  Eq.  PI.,  92.  The  present  petition,  in 
its  original  form,  contained  nothing  of  this  sort,  but  referred 
to  an  accompanying  bill  of  review  as  the  one  which  it  asked 
leave  to  file,  and  then  simply  affirmed  the  facts  stated  in  it  to 
he  true.  This  was  sufficienth^  irregular.  But  ujjon  looking 
into  this  bill  of  review  the  grounds  of  error  are  stated  in  a 
very  loose  manner,  and  in  so  general  a  form  as  to  be  quite  in- 
.admissiblo. 

The  first  error  assigned  is  in  matter  of  law,  and  it  is  that 
Thomas  Arnold,  tlie  administrator,  ought  to  have  been 
charged  with  interest  upon  all  sums  of  money  which  he  had 
received  as  administrator,  because  the  said  sums  were  used  by 
him.  The  master,  in  his  report,  had  declined  to  allow  interest; 
and,  upon  an  exception  taken,  the  court  confirmed  his  report 
on  this  point.  I  see  no  reason  for  changing  the  decree  on  this 
point,  for  the  reasons  stated  in  the  cause  in  3  Mason,  288,  290; 
and  there  is  no  pretense  to  say  that  there  is  any  such  ])roof  of 
the  use  of  the  money  in  the  report  of  the  master  as  justifies  a 
different  conclusion.  There  is  no  error  in  this  respect  ap- 
parent on  the  face  of  the  master's  report  or  the  decree.  The 
allowance  or  disallowance  of  interest  rests  very  much  upon  cir- 
cumstances, and  slight  errors  in  this  respect  are  not  always 
held  fatal.  See  Gould  v.  Tancred,  2  Atk.,  533.  There  is  no 
error  apparent,  therefore,  on  which  a  review  ought  to  be 
granted.  The  next  ground  assigned  is  that  Thomas  Arnold  did 
receive  large  sums  of  money  and  other  proj^erty,  which  he  has 
not  accounted  for  before  the  master,  and  for  which  he  ought  to 
account ;  and  that  since  the  decree  the  petitioner  hath  discov- 
ered new  and  further  evidence  in  relation  thereto,  which  would 
have  materially  changed  the  report  of  the  master  and  the 
decree.  The  petition  does  not  state  what  the  new  evidence  is, 
nor  when  discovered,  and  it  is  quite  too  vague  for  any  order 
of  the  court.  The  bill  then  proceeds,  very  irregularly,  to  re- 
quire, that  the  administrator  of  Thomas  Arnold  should 
answer  certain  interrogatories  as  to  the  cargoes  of  the  ship 
Friendship.  It  then  states  that  Thomas  Arnold  received  six 
shares  in  the  Tennessee  Land  Company,  and  that  he  received 


DEXTKR    V.     AKNOLI).  3i)') 

$8,000  on  a  policy  of  insurance  on  the  brig  Fricndslii]),  and 
that  he  received  large  consignments  of  property  IVoin  \' lucent 
Gray  in  Cuba  in  bills  of  exchange,' etc.,  belonging  to  Jona- 
than's estate  ;  and  finally,  that  he  received  divers  other  large 
sums  of  money  as  agent  of  Jonathan.  Now  it  must  be  mani- 
fest that  upon  allegations  so  general  and  distinct  no  bill  of 
review  would  lie.  Here  is  no  assertion  of  newly-discovered 
evidence  to  maintain  one.  Such  a  bill,  so  framed,  ought 
never  to  be  allowed  by  a  court  acting  upon  the  correct  j)i'in- 
ciples  of  chancery  jurisdiction. 

Afterwards  an  amendment  of  this  bill  to  review  was  tiled, 
containing  more  distinct  specifications  of  new  matter,  most  of 
which,  however,  as  I  shall  have  occasion  to  notice  hereafter, 
are  open  to  the  same  objections  as  those  already  stated. 

But  the  radical  objection  to  both  bills  is  that  they  are  im- 
properly introduced  into  the  cause  at  all.  A  bill  of  review 
can  only  be  filed  after  it  is  allowed  by  the  court,  and 
upon  the  very  grounds  allowed  by  the  court.  The  prelim- 
inary application  by  petition  to  file  it  sliould  state  the  new 
matter  shortly,  distinctly  and  exactly,  so  that  the  court  may 
see  how  it  presses  on  the  original  cause  ;  and  it  is  not  {)ermis- 
•sible  to  load  it  with  charges  and  allegations  as  in  an  original 
seeking  bill  in  equity.  In  the  sense  of  a  court  of  chanceiy 
there  is  not  before  this  court  any  sufficient  petition  upon 
which  it  can  act. 

But  as  the  proceeding  is  a  novelty  in  this  circuit,  much  in- 
dulgence ought  to  be  allowed  to  the  original  counsel  in  the 
cause  (for  the  present  counsel  is  not  at  all  chargeable)  for 
irregularities  of  this  nature  upon  the  first  presentation  of  the 
practice.  I  advert  to  the  posture  of  the  cause,  therefore,  not 
so  much  with  an  intention  to  subject  it  to  close  criticism,  as 
for  the  purj)Ose  of  declaring  that,  even  if  I  could  gather  from 
the  papers  that  there  is  matter  upon  which  a  bill  of  review 
would  lie,  it  is  not  before  the  court  in  such  a  shape  that  the 
court  could  judicially  ])ass  an  order  of  allowance. 

The  case  has,  however,  been  argued,  and  with  great  ability, 
upon  its  merits;  and  waiving  for  the  present  any  further 
reference  to  the  form  of  the  proceedings,  1  will  proceed  to  the 
consideration  of  the  points  made  at  the  bar. 

The  first  point  is  one  made  b}''  the  defendant,  and,  being 
preliminary  in  its  nature,  must  be  disposed  of  before  the  plain- 
tiff can   be  further  lieard.     It  is  said  to  be  a  rule  in  e(|uity, 


356  EQUITY    PLEADING. 

that,  where  a  party  has  less  decreed  to  him  than  lie  thinks 
himself  entitled  to,  he  cannot  bring  a  bill  of  review  ;  for  that 
lies  only  in  favor  of  a  party  against  whom  there  is  a  decree. 
For  this  is  the  opinion  of  elementar^^  writers  (2  Madd.  Pr.,  412  ; 
1  Harris.  Pr.,  86),  and  the  case  of  Glover  v.  Partington,  2 
Freem.,  183;  S.  C,  2  Eq.  Abrid.,  174,  is  cited.  The  case,  as  here 
reported,  certainly  supports  the  doctrine.  But  it  a])pear  to  me 
that,  if  the  doctrine  is  correct,  it  is  so  only  in  cases  where  there 
is  no  error  apparent  on  the  face  of  the  decree,  and  no  newly- 
discovered  matter  to  support  a  bill  of  review,  for  then  the 
proper  remedy  is  by  appeal.  If  there  is  no  such  remedy  by 
appeal,  but  only  by  bill  of  review,  it  w^ould  be  strange  if  a 
material  error  could  not  be  redressed  upon  such  a  bill  by  the 
party  to  whom  it  had  been  injurious ;  that  if  a  man  had 
§10,000  due  him,  and  had  a  decree  for  $100,  he  was  conclu- 
sively bound  by  an  error  of  the  court.  The  decision,  reported 
in  2  Freeman,  182,  was  made  by  the  master  of  the  rolls,  who 
allowed  the  demurrer  ;  but  from  the  report  of  the  same  case  in 
1  Ch.  Cas.,  51,  it  appears  that  it  was  afterwards  reheard  before 
the  Lord  Chancellor  and  Baron  Rainsford,  and  the  demurrer 
was  overruled.  See  S.  C,  cited  Com.  Dig.,  Chancery,  G,  to 
the  same  effect.  So  that  the  final  decision  was  against  the 
doctiine  for  which  it  is  now  cited.  And  Lord  Nottingham,  a 
few  years  afterwards,  in  Vandebende  v.  Levingston,  3  Swanst., 
625,  resolved  that  the  [)laintiff  may  have  a  bill  of  review  to 
review  a  decree  made  for  himself,  if  it  be  less  beneficial  to 
him  than  in  truth  it  ought  to  have  been.  We  may  then  dis- 
miss this  objection. 

We  may  now  advance  to  the  examination  of  the  points 
made  by  the  petitioner,  in  support  of  his  petition  for  a  review, 
assuming  that  the  amended  bill  of  review  is  to  be  received, 
pro  hac  vice,  as  such  a  petition.  I  have  already  stated  that  it 
is  utterly  defective  in  the  essential  ingredients  of  such  a  peti- 
tion, in  not  stating  with  exactness  the  nature  of  the  new  evi- 
dence, and  when  it  was  first  discovered.  It  is  not  sutiicient 
to  say  that  the  petitioner  expects  to  prove  error  in  this  or  that 
respect ;  or  that  he  has  discovered  evidence  which  he  hopes 
will  establish  this  or  that  fact.  But  he  must  state  the  exact 
nature  and  form  of  the  evidence  itself,  and  when  discovered. 
If  written  evidence,  it  must  be  stated,  and  its  direct  bearing 
sliown.  If  of  witnesses,  what  facts  the  witnesses  will  prove, 
and  when  the  party  first  knew  the  nature  of  their  testimony. 


SCOTT    V.     IIOKK.  of)? 

It  is  impossible  otlicrwise  for  the  coui-t  to  judiie  wlicllirr  t-vi- 
dcnce  is  decisive  or  is  merely  })rfbiimptive  or  cumuhitive; 
whether  it  goes  vitally  to  the  ease,  {(ml  disproves  it,  oi'  only 
lets  ill  some  new  matter,  contirmatory  oi-  explanatory  of  the 
transactions  in  the  former  decree.  The  party  must  go  further, 
and  establish  that  he  could  not,  by  reasonable  diligence  bel'ore 
the  decree,  have  })r{)cured  the  evidence.  Now,  in  eveiy  one 
of  these  particulars,  tlie  amended  bill,  qnas!  a  jx-tition,  is  ex- 
tremely deficient.  I  have  looked  it  over  carefully,  and  can- 
not find  that  it  points  out  a  single  written  paper  which  di.s- 
proves  the  original  case,  or  names  a  single  witness  whose  tes- 
timony, if  admitted,  would  overturn  it.  It  deals  altogether 
in  general  allegations  that  certain  things  are  expected  to  be 
proved  ;  and,  like  an  original  bill,  proceeds  to  ask  a  discovery 
from  the  defendant  of  letters  and  papers  in  her  po.s.se.ssion  as 
administrator,  relative  thereto.  There  are  indeed,  in  the  ac- 
companying afhdavits,  some  papers  produced  and  relied  on  ; 
but  they  cannot  supply  the  defects  of  the  original  petition. 

The  remainder  of  the  ca.se,  being  merely  a  discussion  of 
facts,  is  omitted.  Petition  dismissed. 

SCOTT  V.  HOEE. 

(Circuit  Court  for  Virginia  :   1  Ilughes,  I60-I68.     1875. ) 

Motion  for  rehearing  on  the  ground  of  the  negligence  of 
defendant's  counsel. 

Opinion  by  Hughks,  J. 

I  am  to  decide  whether  this  motion  foi-  a  rehearing  of  the 
cause  can  be  granted,  and  whether  the  decree  of  this  court, 
entered  on  the  9th  of  April,  1874,  can  be  set  aside  on  such 
motion.  I  think  it  is  now  settled  law  in  Virginia,  notwith- 
standing the  remarks  of  the  court  in  9  Leigh,  289,  on  the  case 
of  Patterson  v.  Campbell,  never  reported,  that  a  judgment  or 
decree  rendered  by  default  cannot  be  opened  on  the  ground  of 
the  negligence  of  counsel.  In  Hill  v.  ]>owyer,  18  Graft.,  o82-(), 
the  court  of  appeals  says  :  "  A  defendant  upon  whom  ])rocess 
has  been  serve<i,  who  wholly  neglects  his  defense,  or  contents 
himself  Avitli  employing  a  lawyer  who  practices  in  the  coui-t  to 
defend  him  without  giving  any  information  about  his  defense, 
or  inquiring  whether  he  is  attending  to  the  case,  is  not  entitled 
to  relief  on  the  ground  of  surprise,  howevei"  grossly  unjust  the 
decree  may  be."  For  other  decisions  of  the  court  on  this 
point  see  i)  Leigh,  478;   10  Gratt.,  506;  22  Graft.,  13(')  ;  and 


358  KQUITY    PLEADING. 

A\^allace  v.  Kicliinoiul,  assignee  to  be  reported  in  25  Gratt.  It 
is  also  to  be  gathered  from  tliese  cases  that  the  proceeding 
proper  to  be  employed  in  applications  for  opening  judgments 
or  decrees  taken  on  default  through  negligence  of  counsel  is 
not  that  by  a  motion  for  rehearing,  but  by  bill  in  chancery. 
Under  the  Virginia  luw,  this  application  by  motion  cannot  be 
sustained  at  all  ;  and  the  decisions  are  against  it  though  made 
by  bill. 

If  this  motion  depended  alone  upon  the  law  as  settled  in 
Virginia  for  the  courts  of  the  state,  I  should  feel  bound  to 
deny  it  on  the  grounds :  1st.  That  negligence  of  counsel  is  in 
Virginia  no  ground  for  opening  a  judgment  or  decree ;  and, 
2nd,  that  even  though  in  extreme  cases  it  be  so,  yet  the 
proper  mode  of  proceeding  for  defendant  is  by  bill  of  injunc- 
tion, and  not  by  motion. 

But  behind  these  reasons,  which  forbid  a  rehearing  of  this 
case,  on  motion,  there  is  another  objection  more  insurmount- 
able than  the  rest.  The  eighty-eighth  rule  of  the  supreme 
court  of  the  United  States,  prescribed  for  proceedings  in 
chancery  in  the  inferior  courts,  forbids  the  rehearing  of  a 
cause  after  the  term  at  which  the  final  decree  of  the  court 
shall  have  been  entered  and  rendered,  if  an  appeal  lies  to  the 
supreme  court.  The  S[)ring  term  and  the  fall  term  for  1874 
of  til  is  court  had  both  passed  before  this  motion  was  entered. 
The  general  decisions  of  the  court  of  England  and  the  states  of 
America,  many  of  which  have  been  cited  in  argument,  can 
have  no  force  in  this  court  in  opposition  to  such  rule.  We  are 
bound  here  by  the  rule  88.  The  very  fact  of  their  having 
been  a  diversity  of  rulings  on  this  subject  by  other  courts  was 
probably  the  inducement  which  led  the  supreme  court  to  lay 
down  its  rule  88.  That  rule  is  the  law  here,  whatever  may  be 
the  rulings  of  the  other  courts  of  the  highest  authority  on  this 
subject.  The  supreme  court  has  not  only  laid  down  its  rule 
88,  but  in  the  cases  of  Cameron  v.  McRoberts,  3  Wheat.,  591, 
and  ]\IcAficken  v.  Perin,  18  How.,  507,  has  construed  that 
rule  and  decided  that  circuit  courts  have  no  power  to  set  aside 
their  decrees  in  equity,  on  motion,  after  the  term  at  which 
they  are  rendered. 

If  the  decree  of  the  9th  of  April,  1874,  was  a  final  decree, 
and  an  appeal  lies  from  it  to  the  supreme  court,  then  I  am  not 
at  liberty  to  grant  a  rehearing.  If  it  is  a  final  decree,  then 
an  appeal  does  lie  to  the  supreme  court,  because  the  amount 


SCOTT    V.    IIORE.  S.ll) 

involved  exceeds  $2,000,  the  siini  (hen  reciuisilc  (o  ^ive  juris- 
diction of  an  ti})peal  to  that  court.  The  only  in(|uiiy,  there- 
fore, is  whether  the  decree  in  question  was  a  linal  decree. 

It  has  been  truly  said  in  argument  (hat  there  are  two  classes 
of  decisions  by  appellate  courts  with  reference  to  this  character 
of  iinality  in  decrees:  1st,  those  in  which  it  is  neccssiiiy  to  de- 
termine whether  an  apjieal  lies  ;  and,  2d,  those  in  which  a  limi- 
tation of  time  for  an  appeal  cuts  otf  the  right.  In  (he  first 
class  of  cases  the  courts  go  farther  to  construe  a  decree  as 
final  than  tiicy  do  in  the  last  class  of  cases;  in  eacli  class 
aiming  to  ijreserve  to  the  suitor  this  valuable  right.  A  court 
will  when  no  limitation  of  time  occairs,  strain  a  })oint  (o  (reat 
a  decree  as  final  from  which  an  apjjeal  has  been  taken  ;  and 
in  the  other  case  it  will  strain  a  point  to  treat  a  decree  as  not 
final  where  an  aj)peal  would  be  cut  off  by  limitation.  Hence 
has  arisen  a  diversity  of  decisions  on  this  question,  all  made 
in  the  interest  of  the  suitor's  right  of  ajipeal.  I  admit  the 
difficulty  of  defining  a  final  decree  in  such,  precise  terms  as 
will  hold  good  in  all  cases.  I  liave  been  in  the  habit  of 
thinking  those  decrees  to  be  final  which  determine  all  the 
principles  of  law  and  equity  arising  in  a  case,  and  which  give 
direction  for  carrying  the  principles  so  decided  into  execution. 
If  decrees  which  are  made  after  all  evidence  is  taken,  and  full 
and  final  argument  heard,  and  which  determine  all  questions 
raised,  do  not  go  on  to  pi'ovidc  for  carrying  into  complete  exe- 
cution the  principles  decided,  they  are  in  that  res|)ect  defec- 
tive. They  are  final  decrees,  though  as  such  they  may  be 
defective  in  their  ministerial  part;^.  The  supieme  court  of  (he 
United  States  has  not  unfi-equendy  comj)lained  of  dis(rict  and 
circuit  courts  for  not  entering  comj)lcte  final  decrees,  and  of 
their  carrying,  into  executinn  by  piecemeal  decisions  which 
finally  settle  all  questions  arising  in  causes.  The  difficulty  of 
defining  what  are  final  decrees  has  arisen  chiefly  from  the  fact 
that  decrees  really  final  in  character  have  been  defective  in 
providing  full}-  for  the  ministerial  measures  to  be  taken  by 
officers  of  the  court  in  carrying  them  into  cxecu(ion.  Of 
course  it  would  be  exceedingly  empirical  to  hold  that  a  jhial 
decree  is  the  order  entered  Jant  in  point  of  (ime  in  a  cause.  A 
final  decree  is  one  which  finally  a(ljudica(es  the  questions  of 
right  and  of  law  involved  in  a  cause,  and  proceeds  to  provide 
with  reasonable  completeness  for  the  execution  of  such  meas- 
ures as  may  be  necessary  and  proper  for  placing  successful 
suitors  in  possession  of  the  rights  deci-eod  to  (hem. 


o60  EQUITY    PLEADING. 

The  decree  now  under  consideration  is  final,  and  in  my 
judgment,  not  only  in  its  express  terms,  bnt  in  its  subject-mat- 
ter. J3eing  a  final  decree,  and  one  from  which  an  appeal  may 
be  taken  to  the  supreme  court,  it  cannot  be  opened  now  on  a 
motion  for  rehearing.  The  only  possible  method  by  which  it 
can  be  re-examined  in  this  court  is  upon  bill  of  review.  If  such 
a  bill  is  not  brought,  there  is  no  way  of  staying  the  execution 
of  it  other  than  by  appeal.  The  motion  of  the  defendant  is 
denied. 

ROEMER  V.  SIMON. 
(8  Otto,  149,  1.50.     1875.  ) 

Appeal  from  U.  S.  Circuit  Court,  I^istrict  of  New  Jersey. 

Opinion  by  Waite,  C.  J. 

It  is  clear  that  after  an  apjoeal  in  equity  to  this  court  Ave 
cannot,  upon  motion,  set  aside  a  decree  of  the  court  below  and 
grant  a  rehearing.  We  can  only  affirm,  reverse  or  modify  the. 
decree  appealed  from,  and  that  upon  the  hearing  of  the  cause. 
No  new  evidence  can  be  received  here.  R.  S.,  §  698.  The 
court  below  cannot  grant  a  rehearing  after  the  term  at  which 
the  final  decree  was  rendered.     Equity  rule  88. 

It  would  be  useless  to  remand  this  cause,  therefore,  as  the 
term  at  which  the  decree  was  rendered  has  passed.  If  the 
term  still  continued,  the  proper  practice  would  be  to  make 
ap23lication  to  the  court  below  for  a  rehearing,  and  have  that 
court  send  to  us  a  request  for  a  return  of  the  I'ccord  in  order 
that  it  might  proceed  further  with  the  cause.  Should  such  a 
request  be  made,  we  might,  in  a  pro[)er  case  and  under  proper 
restrictions,  make  the  necessary  order;  but  we  cannot  make 
such  an  order  on  the  application  of  the  ])arties.  The  court 
below  can  alone  make  the  request  of  us.  The  application  of 
parties  must  be  addressed  to  that  court  and  not  to  us. 

Motion  denied. 


CIIAPTErv   XI\' 


APPEALS. 


lUile  93. 

When  an  appeal  from  a  final  decree,  in  an  eqnity  ;?nit, 
granting  or  dissolving  an  injnnetion,  is  allowed  by  a  justice 
or  judge  who  took  part  in  the  decision  of  the  cause,  he  may, 
in  his  discretion,  at  the  time  of  such  allowance,  make  an  order 
suspending  or  modifying  tlie  injunction  during  the  pendency 
of  the  ap})eal,  upon  such  terms,  as  to  bond  or  otherwise,  as  he 
may  consider  proper  for  the  security  of  the  I'ights  of  the  op- 
posite party. 

POULTNEY  V.  CITY  OF  LAFAYETTE. 
.(3  Howard,  81-87.     1S44. ) 

Opinion  ])y  Mj;.  Justice  McLean. 

Statement  of  Facts. — This  is  an  ai)peal  from  the  decree 
of  the  circuit  court  for  the  eastern  district  of  Louisiana.  To 
determine  the  point  bi'ought  up  by  the  appeal,  it  is  necessarj' 
to  state  the  substance  of  the  bill  or  answers.  On  motion,  the 
circuit  court  dismissed  the  bill,  under  the  twenty-first  rule, 
because  the  "  com|)lainant.s  had  not  set  down  for  hearing  the 
pleas  filed  in  this  case,  nor  fded  replication  to  tlu^  answers, 
although  more  tiian  two  terms  of  the  court  had  ela|>sed  since 
filing  of  the  same." 

The  rule  refei-red  to  is:  "If  the  ])laintiir  sliall  not  reply  to, 
or  set  for  hearing  any  i)lea  or  demurrer  before  the  second 
term  of  the  court  after  tiling  the  same,  the  \n\\  may  be  dis- 
missed, with  costs."  No  })lea  had  been  filed  in  the  case,  and 
the  denmrrer  filed  had  been  overruled,  so  tiiat  the  rule  did 
not  apply  to  the  case  as  it  .stood  at  the  time  of  the  dismissal. 
The  mle  can  only  ai)i)ly  to  deinun\'i's  and  pleas  technically  .so 
called.  And  tliere  is  no  oIIum-  rule  of  proceeding  which 
authorized  the  deci'ee  of  the  couit.     The  comi»lainant  may,  if 

(^<n  ) 


3G2  EQUITY    PLEADING. 

he  choose,  go  to  the  liearing  on  tlie  l)ill  and  answer.  The  de- 
cree of  the  circuit  court  is  reversed,  and  the  cause  is  remanded 
for  further  proceedings. 

CLEMENTS  v.  MOORE. 
(6  Wallace,  299-316.     1867.) 

Opinion  by  Mk.  .Justice  Swayne. 

Statement  of  Facts. — These  are  cross-appeals,  in  equity, 
fi-oni  the  district  court  of  the  United  States  for  the  western 
district  of  Texas. 

The  appellants,  Clements  and  Sheldon,  are  judgment  cred- 
itors of  the  defendant,  James  Nicholson,  and  filed  the  original 
and  amended  bills,  found  in  the  record,  to  set  aside,  upon  the 
ground  of  fraud,  the  sale  by  Nicholson  to  the  defendant, 
Moore,  of  Nicholson's  entire  stock  of  merchandise,  and  the 
conveyance  by  Nicholson  to  Mooi'e,  and  by  Moore  to  liebecca 
H.  Nicholson,  James  Nicholson's  wife,  of  certain  lots  in  the 
town  of  Bastrop  —  described  in  the  proceedings.  The  district 
court  adjudged  the  sale  of  the  merchandise  to  be  fraudulent 
and  void  ;  and  dismissed  the  bill  as  to  Mrs.  Nicholson  and  the 
lots. 

We  are  met  at  the  threshold  of  the  investigation  by  the  ob- 
jections that  leave  was  not  given  to  file  the  amended  bills,  and 
that  there  is  no  replication  in  the  case.  Hence  it  is  insisted 
that  our  examination  is  to  be  confined  to  the  original  bill  and 
answer,  and  that  we  cannot  look  beyond  them.  We  find  in 
the  record  a  sufficient  replication,  though  it  was  not  filed 
until  after  a  part  of  the  testimony  had  been  taken.  But  if 
there  were  none,  there  are  two  sufficient  answers  to  both  of 
the  objections.  They  were  not  made  in  the  court  below. 
They  were  thereby  waived,  and  cannot  be  taken  here.  They 
are  also  within  tlie  provisions  of  the  statute  of  1789,  upon  the 
subjects  of  jeofails.      Brightley's  Digest,  41. 

The  goods  were  sold  on  the  7th  of  July,  1851.  After  satis- 
fying a  debt  due  to  House  out  of  the  stock,  Nicholson  deter- 
mined, under  the  advice  of  Larkins,  to  assign  the  residue  to 
Moore  for  the  benefit  of  his  creditors.  Moore  was  applied  to 
accordingl3^  He  was  told  by  Nicholson  that  his  object  was  to 
secure  his  creditors,  and  that  unless  the  assignment  was  made 
his  entire  means  would  be  absorbed  by  a  few  of  his  creditors 
in  New  York,  to  whom  he  was  most  largely  indebted,  to  the 


CLKMKNTS    V.    MOORE.  3(')3 

exclusion  of  his  lionie  and  other  dohts.  Moore  jM'oniised  to 
consider  the  subject.  An  assignment  was  suljse(|Uently 
drawn.  Before  it  was  executed  Mo^)re  niade  die  i)ni-chase. 
The  terms  were  tlie  cost  in  New  York,  less  twenty  per  cent. 
The  goods  amounted  to  $G,310.35.  Moore  gave  his  notes, 
amounting  in  the  aggregate  to  that  sum.  At  what  times  they 
were  payable  respectively,  and  whether  they  bore  inteivst, 
does  not  appear  in  the  case.  The  laws  of  Texas  j)ermitted  a 
failing  debtor  to  prefer  creditors  according  to  his  election.  We 
find  here  none  of  the  badges  of  fraud  mentioned  in  Twyne's 
case.  The  sale  was  openly  made;  there  was  an  imiiK'(hate 
change  of  possession  ;  the  price  agreed  to  be  pai<l  was  fully  as 
much  as  the  goods  were  worth.  jNIoore  lost  uj)on  them.  All 
the  notes  given  by  Moore,'except  three  for  $50(J  each,  were  aj)- 
plied  in  payment  of  Nicholson's  debts.  On  the  other  hand, 
Nicholson  was  insolvent,  and  Moore  knew  it.  He  knew  also 
that  it  was  Nicholson's  purpose  to  hinder  and  delay  the  com- 
plainants. It  was  easy  to  convert  the  notes  and  place  the  pro- 
ceeds beyond  the  reach  of  his  creditors.  The  same  process  as 
to  the  goods  was  more  difficult.  If  Nicholson  intended  a 
fraud,  Moore  must  have  known  he  was  giving  him  facilities 
in  that  direction.  One  of  the  three  notes  mentioned  was  sold 
by  Nicholson  at  a  large  discount.  The  other  two  were  deliv- 
ered b}'  Mrs.  Nicholson  to  Moore  in  ])ayment  for  the  lots  in 
controversy.  It  remains  to  consider  the  law  applicable  to  this 
state  of  facts. 

The  complainants  waived  an  answer,  under  oath,  by  this 
defendant.  Her  answer  is  neverthele.'^s  verified  by  an  afhda- 
vit.  This  was  proper.  It  was  her  right  so  to  answer  and  the 
complainants  could  not  de{)rive  her  of  it.  .Such  is  the  settled 
rule  of  equity  practice  where  there  is  no  regulatit)n  to  the  con- 
trar3^  Armstrong  v.  Scott,  3  Greene,  433.  The  decree  of  the 
district  court  of  Bastro})  county  is  found  in  the  record.  It 
was  entered  by  the  agreement  of  counsel.  It  required  Moore 
to  execute  to  Mrs.  Nicholson  a  full  and  complete  title  to  lots 
62,  65  and  70.  It  is  silent  as  to  block  95,  and  ordered  lot  4 
to  be  sold  to  satisfy  the  claim  of  Scott,  a  defendant  in  that 
proceeding.  Neither  party  took  any  testimony  ouching  this 
part  of  the  case.     It  stands  upon  the  bills  and  answers. 

No  attempt  is  made  to  exj)lain  the  contradiction  of  the 
answers  of  INIoore  and  Nicholson  by  the  deeds  as  to  the 
amount  of  the  consideration  alleged   to  have  been  paid   by 


364  EQUITY    I'LKADING. 

Moore  for  the  lots.  The  answei's  of  both  arc  silent  as  to  the 
mode  of  payment.  This  rendered  disproof  of  the  allegation  of 
the  amount  difficult  if  not  impossible.  The  facts  di.sclosed 
create  a  strong  doubt  of  the  integrity  of  the  transaction  be- 
tween Moore  and  Nicholson  and  threw  on  Moore  the  duty  of 
making  a  full  explanation  and  the  burden  of  proof  to  sustain 
it.  Picklock  V.  Brown,  3  P.  Will.,  289  ;  Wharton  v.  May,  5 
Ves.,  49.  We  feel  constrained  to  resolve  the  doubt  against 
the  validity  of  the  sale.  The  striking  discrepancies  between 
the  answers  of  Mr.  and  Mrs.  Nicholson  need  no  remark.  She 
admits  that  she  paid  for  the  lots  by  delivering  up  to  Moore 
notes  which  he  had  executed  to  Nicholson.  This  makes  a 
prima  facie  case  against  her.  She  adds  that  the  notes  were 
transferred  to  her  by  Nicholson  in  consideration  of  money  she 
had  lent  to  him.  Of  this  there  is  no  proof.  It  is  an  estab- 
lished rule  of  evidence  in  equity  that  where  an  answer  which 
is  put  in  issue  admits  a  fact  and  insists  upon  a  distinct  fact  by 
way  of  avoidance,  the  fact  admitted  is  established,  but  the  fact 
insisted  upon  must  be  proved  ;  otherwise  the  admission  stands 
as  if  the  fact  in  avoidance  had  not  been  averred.  Gresley's 
Evidence,  13  ;  Hart  v.  Tenyke,  2. Johns.  Ch.,  60.  The  appli- 
cation here  of  this  princi[)le  is  decisive.  There  is  nothing  to 
neutralize  the  effect  of  the  iidmitted  fact  that  the  property  was 
paid  for  with  notes  which  had  belonged  to  Nicholson.  There 
is  not  the  slightest  proof  of  any  consideration  for  the  transfer 
of  those  notes  by  him  to  her.  The  complainants  have  a  right 
to  follow  the  fund  into  any  property  in  which  it  was  invested 
as  far  as  it  can  be  traced.  Oliver  v.  Piatt,  3  How.,  401.  The 
decree  of  the  court  below  is  silent  as  to  lots  4  and  95.  There 
is  no  competent  proof  in  the  record  sufficient  to  exempt  them 
from  the  claim  of  the  complainants.  If  others  have  acquired 
paramount  rights  it  must  be  shown  elsewhere  in  another  pro- 
ceeding. 

The  decree  as  to  both  branches  of  the  case  is,  in  our  judg- 
ment, eri'oneous.  It  is  therefore  reversed.  The  case  will  be 
remanded  to  the  district  court  with  instructions  to  enter  a 
decree  in  conformity  with  this  opinion. 

[XoTE. — Only  so  much  of  this  case  is  reported  as  relates  to  Equity  Pleading 
and  Practice.] 


\\Ai;i)   V.   Aiti;i:i)ONi)().  3(»5 

WAKI)   r.    AKKKDONDO. 
(Circuit  Court  for  Now  York  :   1    I'aiiie,  llO-lKi.      1825.) 

Opinion  by  Thompson,  J. 

Statement  of  Facts. — This  is  a  motion  that  the  {i])i)oar- 
ance  of  Fernando  Arredondo,  one  of  the  defendants,  be  entered 
in  this  court,  for  the  purpose  of  removing  the  cause  from  the 
state  court,  where  it  was  commenced,  pursuant  to  the  acts  of 
congress  in  such  case  made  and  provided.  A  brief  statement 
of  the  situation  of  the  cause  is  necessary  to  a  riglit  understand- 
ing of  the  questions  that  are  ])resented  for  consideration. 

A  bill  in  equity  was  fded  by  Ward,  a  citizen  of  the  state  of 
New  York,  against  the  Arredondos,  wdio  are  aliens,  and 
Thomas,  who  is  a  citzen  of  the  state  of  New  York,  for  the 
specific  performance  of  a  contract  between  the  Arredondos  and 
Ward,  for  the  conveyance  by  them  of  a  certain  tract  of  land 
in  Florida,  under  and  by  virtue  of  a  contract  which  had  been 
entered  into  between  the  parties  for  the  sale  and  purchase  of 
the  land  in  question,  a  deed  for  which  had  been  duly  exe- 
cuted by  the  Arredondos,  and  sent  to  Thomas  for  delivery, 
with  certain  instructions  which  will  be  noticed  hereafter. 
The  main  object  of  the  l)ill  was  to  compel  a  delivery  of  the 
deed  to  Ward,  and  to  restrain  Thomas  from  returning  the 
same  to  the  Arredondos,  until  the  merits  of  the  suit  between 
them  and  Ward  should  be  determined.  Thomas  a})[)eared  in 
the  state  court,  and  answered  the  bill. 

One  of  the  Arredondos  has  heretofore  appeared  in  the  state 
court,  and  petitioned  for  a  removal  of  the  cause  into  this  court, 
and  his  appearance  has  been  duly  entered  here.  \Ve  lay  out 
of  view  the  objection  urged  on  the  argument,  that  the  cause 
was  not  in  the  state  circuit  court  when  his  appearance  was 
entered  and  the  petition  to  remove  the  cause  into  this  court  was 
filed.  It  is  alleged  that  the  cause  had  been  removed  from  that 
court  into  the  court  of  chancery  l)y  api)eal,  and  had  not  been 
remitted  to  the  state  circuit  court,  at  the  time  the  appearance 
was  entered.  We  assume,  for  the  [)urpose  of  the  j)resent 
motion,  that  the  cau.se  was  regularly  in  the  state  circuit  court, 
and  that  the  appearance  of  one  of  the  Arredondos  was  duly 
entered  there. 

Under  this  state  of  the  case  the  questions  presented  tor  con- 
sideration are  :  1st.  Whether,  as  Ward,  the  complainant,  and 
Thomas,  one  of  the  defendants,  are  both  citizens  of  New  York, 


366  EQUITY    PLEADING. 

the  cause  can  be  removed  into  this  court.  2(1.  As  to  the  prac- 
tice of  removing  causes  from  the  state  courts,  when  there  are 
several  defendants,  and  their  appearance  in  the  state  court  is 
entered  at  different  times. 

It  is  a  well  settled  rule,  and  indeed  has  not  been  denied  by 
the  defendants'  counsel,  that  when  the  jurisdiction  of  this 
court  depends  on  the  character  of  the  parties,  and  such  party, 
either  plaintiff  or  defendant,  consists  of  a  number  of  individ- 
uals, each  one  must  be  competent  to  sue  in  the  courts  of  the 
United  States,  or  jurisdiction  cannot  be  entertained.  This  is 
the  general  rule ;  tlie  exceptions  will  be  noticed  hereafter. 
3  Cranch,  267.  And  under  this  rule,  this  court,  prima  facie, 
cannot  .take  jurisdiction  of  this  cause  ;  for  Thomas,  one  of 
the  defendants,  is  a  citizen  of  the  same  state  with  the  com- 
plainant. 

It  is  very  evident  that  Wai'd  could  not  originally  have  filed 
his  bill  in  this  court  against  Thomas  as  one  of  the  defendants, 
and  it  would  seem  to  follow  as  a  necessary  consequence,  that,  if 
jurisdiction  could  not  be  entertained  directly,  it  ought  not  to 
be  acquired  indirectly.  But  it  is  said  that  Thomas  is  oidy  a 
nominal  party,  and  tliat  the  jurisdiction  of  this  court  cannot 
be  taken  away  in  siu-h  case.  If  the  fact  be  so,  that  he  is  a 
mere  nominal  party,  there  is  no  doubt  it  would  not  deprive 
this  court  of  jurisdiction.  It  has  been  so  decided  by  the 
supreme  court  in  the  case  of  Brown  v.  Strode,  5  Cranch,  303, 
and  in  Wormly  v.  Wormly,  8  Wheat.,  451.  In  such  cases 
the  jurisdiction  of  the  court  (le])ending  upon  the  question 
whether  the  individual  who  is  prima  facie  incompetent  to  ap- 
pear in  the  courts  of  the  United  States  is  a  real  and  substan- 
tial or  onl}'  a  nominal  party,  this  court  must  of  necessit}'  go 
so  far  into  the  merits  of  the  case  as  to  enable  it  to  decide  that 
question. 

Is  Thomas,  then,  a  nominal  party  only,  in  the  sense  in 
which  that  rule  is  to  be  understood?  And  we  think  he  is  not ; 
but  that  he  is  a  real  and  an  indispensable  party  to  the  decision 
and  final  determination  of  the  merits  of  this  case.  From  the 
allegations  in  the  bill,  and  the  answers  of  Thomas,  it  a))pe'cirs 
that  the  deed  for  the  land  in  question  has  been  executed  by 
the  Arredondos,  and  placed  in  the  hands  of  Thomas  for  de- 
livery to  Ward,  upon  his  paying  a  sum  of  money,  the  amount 
not  ascertained  with  certainty.  The  allegation  in  the  bill  is 
that  $5,000,  which  was  more  than  the  balance  due,  had  been 


NVAKD    V.    Ar.KKDONDO.  3()7 

tendered  to  Tlionms  and  (lie  drrd  dcninnded.  TIu'  answer  of 
Thomas  admits  that  lie  was  authorized  by  the  Arrc^dondos  to 
deliver  the  deed  u})on  the  receipt  of  ^iieh  sum  (in  addition  to 
a  balance  of  principal'  of  about  $5,0(>(),  remainin*;-  (hu-  upon 
the  contract)  as  he  (Thomas)  mi<iht  think  proper.  lie  also 
admits  the  tender  of  the  ^o.OOO ;  Init  that  he  demanded 
$15,000  before  he  would  deliver  the  deed.  Thomas  then, 
according  to  his  admissions,  held  this  deed  in  trust,  with  a 
discretionary  power  to  deliver  it  upon  the  payment  of  such 
su.li  as  he  should  demand  over  and  above  $5,000.  The 
$5,000  was  duly  tendered,  but  he  chose  to  demand  $10,000 
more.  He  assumed  then,  either  arbitrarily  or  U{)on  his  eon- 
struction  of  the  contract,  to  claim  $10,000  more  than  was 
admitted  by  the  complainant  to  be  due,  and  of  course  made 
himself,  to  a  certain  extent,  a  l)arty  to  the  merits  of  the  ques- 
tion. And  it  was  com})etent  to  the  court  of  chancery  to  say 
whether,  upon  examination,  he  had  abused  his  trust,  and  de- 
manded that  for  which  there  was  no  color,  or  to  have  decreed 
a  delivery  of  the  deed  upon  payment  of  such  sum  as  should 
be  found  justly  due,  or  to  have  dismissed  the  bill,  according 
as  it  should  find  the  merits  of  the  case  on  examination.  But 
he  was  an  essential  party  to  enable  the  com})lainant  to  obtain 
the  relief  sought,  viz.,  a  title  for  the  land.  Thomas  in  his 
answer  admits  that  Ward  had  paid  upwards  of  $35,000  ui)on 
the  contract.  Under  the  circumstances  of  this  case,  the  very 
essence  of  the  relief  is  to  be  obtained  only  by  a  decree  against 
Thomas  to  deliver  the  deed. 

In  the  case  of  Wormly  v.  AVormly  the  criterion  l)y  which  it 
was  determined  whether  a  party  was  nominal  or  not  was 
whether  a  decree  again.st  him  was  sought.  The  court  said  it 
would  not  suffer  its  jurisdiction  to  be  ousted  by  the  mere 
joinder  or  non-joinder  of  formal  parties,  but  will  proceed  with- 
out them  and  decide  upon  the  merits  of  the  case  between  the 
parties  who  have  the  real  interest  before  it  whenever  it  can  be 
done  without  prejudice  to  the  rights  of  others.  Thomas,  wc 
think,  is  not  a  mere  formal  party,  but  that  a  decree  against 
him  is  essential  to  the  relief  claimed,  if  the  complainant  is  en- 
titled to  it.  Whether  he  is  or  not,  is  a  question  upon  which 
we  give  no  opinion. 

This  view  of  the  case  leads  to  a  denial  of  the  motion,  and 
remanding  the  cause  to  the  state  court,  and  renders  it  un- 
necessary to  express  any  opinion  upon  the  second  point.     Ihit 


368  EQUITY    PLEADING. 

as  it  is  in  a  great  measure  a  question  of  practice  and  may  be 
applicable  to  other  cases,  it  may  not  be  amiss  to  express  our 
present  impressions  on  the  point. 

The  state  court  had  unquestionably  jurisdiction  of  the 
cause.  The  complainant  had,  therefore,  a  right  to  go  there 
for  relief,  and  indeed,  in  this  case,  he  must  have  commenced 
his  suit  in  the  state  court.  But  the  present  question  is,  sup- 
posing the  Arredondos,  both  aliens,  were  the  only  defendants, 
one  having  appeared  in  the  state  court  and  the  other  not,  can 
the  one  who  has  appeared  remove  the  cause  and  give  the 
circuit  court  of  the  United  States  jurisdiction  upon  the  merits? 
And  we  are  inclined  to  think  he  cannot.  We  would  be  under- 
stood, however,  as  confining  this  rule  to  cases  where,  from  tlie 
subject-matter  of  the  suit,  the  judgment  or  decree  must  be 
joint.  There  may  be  cases  in  equity  where  the  several  parties 
represent  distinct  interests,  so  that  separate  decrees  may  be 
made,  where  possibly  some  of  the  parties  may  take  the  cause 
into  the  circuit  court  and  others  remain  in  the  state  court ; 
but  it  ought,  even  in  such  cases,  to  be  a  very  strong  and  palp- 
able case  of  separate  and  distinct  interests  to  sanction  such  a 
course.  There  is  nothing  disclosed  in  this  case  to  bring  it 
within  any  such  rule.  The  interest  is  fairly  to  be  presumed 
joint,  and  the  cause  must  come  entire  or  not  at  all  into  this 
court,  before  the  merits  can  be  decided. 

Can,  then,  one  of  the  alien  defendants  compel  his  co-defend- 
ant to  follow  him  into  this  court  against  his  will?  We  put 
the  case  thus  strongly  in  order  to  test  the  principle.  And  we 
cannot  discover  any  satisftictory  ground  upon  which  such  a 
doctrine  can  be  sustained.  The  judiciary  act  considers  the 
removal  of  the  cause  as  the  voluntary  act  of  the  party  and  on 
his  petition.  By  the  word  party,  as  here  used,  must  necessarily 
be  understood  the  defendant,  embracing  all  the  individuals, 
be  they  more  or  less,  constituting  such  i)arty. 

This  application  to  remove  the  cause  must  be  made  at  the 
time  of  entering  the  appearance  in  the  state  court.  But  there 
is  nothing  that  makes  it  necessar}^  that  such  application 
should  be  made  by  all  the  defendants  at  the  same  time.  This 
court  is  not  possessed  of  the  cause  so  as  to  proceed  therein 
until  all  the  defendants  come  here.  But  when  the  appearance 
in  the  state  court  shall  be  at  different  times  by  diHerent  de- 
fendants, there  can  be  no  objection  to  their  appearance  being 
entered  in  this  court  at  different  times ;  and  indeed  such  a 


WARD    V.    AKREDONDO.  309 

construction  of  tlie  act  is  in(lis[)ensal)Ic,  as  tlic  a[»plic;iti(>ii  lor 
the  removal  must  be  made  on  entering  the  aj)pearance  in  the 
state  court ;  antl  when  the  defendants  arc  numci'ous  they  may 
in  suits,  both  at  hiw  and  in  equity,  be  brought  into  the  state 
court  at  different  times ;  and  that  court  cannot  cause  the  ap- 
pearance then  to  be  entered  )iunc  pro  tunc,  so  as  to  entertain 
the  motion  to  remove  the  caitse  after  all  the  defendants  are 
brought  into  court.  Gibson  v.  Johnson,  1  Pet.,  44.  But  if 
all  the  defendants  should  not  petition  to  have  the  cause  re- 
moved into  this  court,  so  as  to  enable  it  to  proceed,  the 
cause  may  be  remanded  to  the  state  court,  so  as  to  give  it  pos- 
session of  the  whole  case.  4  Cranch,  421.  An  original  ap- 
pearance of  some  of  the  defendants  cannot  be  entered  in  this 
court.  The  cause  having  been  regularly  commenced  in  the 
state  court  cannot  be  removed  therefrom  except  in  the  mode 
prescribed  by  the  act  of  congress ;  the  appearance  must  first 
be  entered  in  the  state  court,  and  the  security  then  given  to 
enter  the  appearance  in  this  court ;  and  then  the  state  court  is 
prohibited  from  proceeding  any  further  in  the  cause.  But 
until  then  it  may  proceed,  and  the  effect  might  be  in  some 
cases  that  proceedings  would  be  going  on  at  the  same  time,  in 
the  same  cause,  in  both  courts.  And  this  court  is  not  author- 
ized to  take  cognizance  of  the  cause,  unless  removed  in  the 
manner  pointed  out  by  the  act. 
24 


CHAPTER  XV. 

ENFORCEMENT    OF    PROCESS    AND    DECREE AUXILIARY    PRO- 
CEEDINGS. 

Rule  8. 

Final  process  to  execute  any  decree  may,  if  tlie  decree  be 
solely  for  the  payment  of  money,  be  by  a  writ  of  execution, 
in  the  form  used  in  the  circuit  court  in  suits  at  common  law 
in  actions  of  assumpsit.  If  the  decree  be  for  the  performance 
of  any  specific  act,  as,  for  example,  for  the  execution  of  a  con- 
veyance of  land  or  the  delivering  up  of  deeds  or  other  docu- 
ments, the  decree  shall,  in  all  cases,  prescribe  the  time  within 
wliich  the  act  shall  be  done,  of  which  the  defendant  shall  be 
bound,  without  further  service,  to  take  notice ;  and  upon  affi- 
davit of  the  plaintiff,  filed  in  the  clerk's  office,  that  the  same 
has  not  been  complied  with  within  the  prescribed  time,  the 
clerk  sliall  issue  a  writ  of  attachment  against  the  delinquent 
party,  from  which,  if  attached  thereon,  he  shall  not  be  dis- 
charged, unless  upon  a  full  compliance  with  the  decree  and 
the  payment  of  all  costs,  or  upon  a  special  order  of  the  court, 
or  of  a  judge  thereof,  upon  motion  and  affidavit,  enhirging 
the  time  for  the  performance  thereof.  If  the  delinquent 
party  can  not  be  found,  a  writ  of  sequestration  sliall  issue 
against  his  estate  upon  the  return  of  no7i  est  inventus,  to  com- 
pel obedience  to  the  decree. 

Rule  10. 

Every  person,  not  being  a  party  in  any  cause,  who  has  ob- 
tained an  order,  or  in  whose  favor  an  order  shall  have  been 
made,  shall  be  enabled  to  enforce  obedience  to  such  order  by 
the  same  process  as  if  he  were  a  party  to  the  cause  ;  and  every 

(370) 


EQUITY    PLEADING.  371 

person,  not  being  a  party  in  any  cause,  against  whom  obe- 
dience to  any  order  of  the  court  may  be  enforced,  shall  be 
liable  to  the  same  process  for  enforcing  obedience  to  such 
orders  as  if  he  were  a  party  in  the  cause. 

Bide  89. 

The  circuit  courts  (a  majority  of  all  the  judges  thereof,  in- 
cluding the  justice  of  the  Suj)r(Mne  Court,  the  circuit  judges, 
and  the  district  judge  for  the  district,  concurring  therein)  may 
make  any  other  and  fuither  rules  and  regulations  for  the 
practice,  proceedings,  and  j)rocess,  mesne  and  tinal,  in  their 
respective  districts,  not  inconsistent  with  the  rules  hereby  pre- 
scribed, in  their  discretion,  and  from  time  to  time  alter  and 
amend  the  same. 

Bulc  f). 

When  any  decree  or  order  is  for  the  delivery  or  possession, 
upon  proof  made  by  aflidavit  of  a  demand  and  refusal  to  obey 
the  decree  or  order,  the  party  prosecuting  the  same  shall  be 
entitled  to  a  writ  of  assistance  fiom  the  clerk  of  the  court. 

Mule  81. 

No  demurrer  or  plea  shall  he  allowed  to  be  filed  to  any  bill, 
unless  uj)on  a  certificate  of  counsel,  that  in  his  opinion  it  is 
well  ibunded  in  point  of  law,  and  supported  by  the  affidavit 
of  the  defendant;  that  it  is  not  interposed  for  delay  ;  and,  if  a 
pica,  that  it  is  true  in  point  of  fact. 


EQUITY  PRACTICE  IS  ALSO  AFFECTED  BY  THE  FOLLOWING 


GENERAL  RULES  OF  PRACTICE  OF  THE  SUPREME  COURT; 


Mule  3. 

ENGLISH    PRECEDENTS. 


This  court  consider  the  practice  of  the  Court  of  the  King's 
(Queen's)  Bench  and  of  Chancery,  in  England,  as  affording 
outhnes  for  the  practice  of  this  court ;  and  they  will,  from 
time  to  time,  make  such  alterations  therein  as  circumstances 
may  render  necessary. 

Rule  5. 

PROCESS. 

(1.)  Style. 

All  process  in  this  court  shall  be  in  the  name  of  the  Presi- 
dent of  the  United  States. 

(2.)  Service  on  State. 

When  process  at  common  law  or  in  equity  shall  issue  against 
a  state,  the  same  shall  be  served  on  the  governor,  or  chief  ex- 
ecutive magistrate,  and  attorney-general  of  such  state. 

(3.)    When  Served. 

Process  of  subpoena  issuing  out  of  the  court  in  any  suit  in 
equity,  shall  be  served  on  the  defendant  sixty  days  before  the 

(372) 


EQUITY    PLEADING.  373 

return  day  of  said  process;  and  if  the  defendant,  on  such 
service  of  the  subj^ooia,  shall  not  api)earat  the  return  day  con- 
tained therein,  the  comj-jlainant  phall  be  at  liberty  to  proceed 
ex  parte. 

linle  12. 

EVIDENCE. 

In  all  cases  where  furtlier  jtroof  is  ordered  by  the  court,  the 
depositions  which  shall  be  taken  shall  be  by  a  commission  to 
be  issued  from  the  court,  or  from  any  Circuit  Court  of  the 
United  States. 

Rule  l.i. 

OBJECTION    TO    EVIDENCE. 

In  all  cases  of  equity  and  admiralty  jurisdiction  heard  in 
this  court,  no  objection  shall  hereafter  be  allowed  to  be  taken 
to  the  admissibility  of  any  deposition,  deed,  grant  or  other 
exhibit  found  in  the  record,  as  evidence,  unless  objection  was 
taken  thereto  in  the  court  below,  and  entered  of  record  ;  but 
the  same  shall  otherwise  be  deemed  to  have  been  admitted  by 
consent. 


ADDENDA. 


iiircmc  Court  of  tlje  llniicb  ^tatfs. 


October  Term,  1900. 


It  is  ordered  by  the  Court,  That  Section  1  of  Rule  5  of  this 
court  be,  and  the  same  is  hereby,  amended  so  as  to  read  as 
follows  : 

1.  All  processes  of  this  court  shall  be  in  the  name  of  the 
President  of  the  United  States,  and  shall  contain  the  Christian 
names,  as  well  as  the  surnames,  of  the  parties. 

(Promulgated  December  17,  1900.) 

It  is  ordered  by  the  Court,  That  the  first  sentence  of  Rule 
12  of  the  Rules  of  Practice  in  Equity  be,  and  the  same  is 
hereby,  amended  so  as  to  read  as  follows : 

Whenever  a  bill  is  filed,  the  clerk  shall  issue  the  process  of 
subpoena  thereon,  as  of  course,  upon  the  application  of  the 
plaintiff,  which  shall  contain  the  Christian  names  as  well  as 
the  surnames  of  the  parties,  and  shall  be  returnable  into  the 
clerk's  office  the  next  rule  day,  or  the  next  rule  day  but  one, 
at  the  election  of  the  plaintiff,  occurring  after  twenty  days 
from  the  time  of  the  issuing  thereof. 

(Promulgated  December  17,  1900.) 

(374) 


APPENDIX. 


ORDIl^ANCEH  MADE  BY  THE  LORD 
CHANCELLOK  BACON. 


'>  For  the  better  and  more  regular  administration  of  justice 
in  the  Chancerv,  to  be  daily  observed,  saving  the  prerogative 
of  the  court. 

1.  Bill  of  Review. 

No  decree  shall  be  reversed,  altered,  or  ex})lained,  being 
once  under  the  gi'eal  seal,  but  upon  bill  of  review  ;  and  no 
bill  of  review  shall  be  admitted  except  it  contain  either  error 
in  law,  appearing  in  the  body  of  the  decree,  without  further 
examination  of  matters  in  fact,  or  some  new  matter  which 
hath  risen  in  time  after  the  decree,  and  not  any  new  proof 
which  miglit  liave  been  used  when  the  decree  was  made : 
nevertheless,  upon  new  proof,  that  is  come  to  light  after  the 
decree  made,  and  could  not  possibly  have  been  used  at  the 
time  when  the  decree  passed,  a  bill  of  review  may  be  grounded 
by  the  special  license  of  the  court,  and  not  otherwise. 

2.  Clerical  Error. 

In  case  of  miscasting,  being  a  matter  demonstrative,  a  de- 
cree may  be  explained,  and  reconciled  by  an  order,  without  a 
bill  of  review ;  not  understanding  by  miscasting,  any  pre- 
tended misrating  or  misvaluing,  but  only  error  in  the  audit- 
ing or  numbering. 

3.  Decree  to  he  Performed. 
No  bill  of  review  shall  be  admitted,  or  au}^  other  new  bill, 
to  change  matter  decreed,  except  the  decree  be  first  obeyed 
and  performed  :  as,  if  it  be  for  land,  that  the  possession  be 

(377) 


Olb  EQUITY    I'LKADING. 

yielded  ;  if  it  be  for  money,  that  the  money  be  i)aid  ;  if  it  be 
for  evidence,  that  tlie  evidences  be  bi'onglit  in;  and  so  in 
other  cases  whicli  stand  upon  the  strength  of  the  decree  alone. 

4.  Big  Jit  Saved. 
But  if  any  act  be  decreed  to  be  done  which  extinguisheth 
the  parties'  right  at  the  common  law,  as  making  of  assurance 
or  release,  acknowledging  satislaction,  cancelling  of  bonds  or 
evidences,  and  the  like,  tliose  |)arts  of  the  decree  are  to  be 
spared  until  the  bill  of  review  be  determined  ;  but  such  spar- 
ing is  to  be  warranted  by  public  order  made  in  court. 

5.   Surefjj. 

No  bill  of  review  sliall  be  put  in,  except  the  party  that  pre- 
fers it  enters  into  recognizance  with  sureties  for  satisfying  of 
costs  and  damages  for  the  delay,  if  it  be  found  against  him. 

0.  Statute,  Chanr/c  of  Construction. 
No  decrees  shall  be  made,  upon  pretense  of  equity,  against 
the  express  provision  of  an  act  of  Parliament ;  nevertheless,  if 
the  construction  of  such  act  of  Parliament  hath  for  a  time 
gone  one  way  in  general  opinion  and  reputation,  and  after,  by 
a  later  judgment,  hath  been  controlled,  then  relief  may  be 
given  upon  matter  of  equity,  for  cases  arising  before  the  said 
judgment,  because  the  subject  was  in  no  default. 

7.  Contempt — Strait  Custodij. 
Imprisonment  for  breach  of  a  decree  is  in  nature  of  an  exe- 
cution, and  therefore  the  custody  ought  to  be  strait,  and  the 
party  not  to  have  any  liberty  to  go  abroad,  but  by  special 
license  of  the  Lord  Chancellor;  but  no  close  imprisonment  is 
to  be,  but  by  express  order  for  willful  and  extraordinary  con- 
tempts and  disobedience,  as  hath  been  used. 

8.   Penalties. 
In  case  of  enormous  and  obstinate  disobedience  in  breach 
of  a  decree,  an   injunction  is  to  be  granted  " subpcena"  of  a 


ORDIXAN'CKS.  o70 

sum  ;  niul  ii]>on  aflidavit,  or  other  snfiicient  |)roof,  or  persist- 
ing in  conteiii})t,  fines  arc  to  be  pi'onounccd  l)y  tlie  Lord 
Chancellor  in  open  court,  and  the  same  to  be  estreated  down 
into  the  hana})er,  if  cause  be  by  a  special  order. 

9.  Process  for  Lands. 
In  case  of  a  decree  made  for  the  possession  of  land,  a  writ 
of  execution  goes  forth  :  and  if  that  be  disobeyed,  then  process 
of  contem[)t  according  to  the  coui'se  of  the  court  against  the 
person,  unto  a  commission  of  rebellion  ;  and  then  a  sergeant- 
at-arms  b}'  special  warrant ;  and  in  case  the  sergeant-at-arms 
can  not  find  him,  or  be  resisted;  or  upon  the  coming  in  of  the 
party,  and  his  commitment,  if  he  persist  in  disobedience,  an 
injunction  is  to  be  granted  for  the  possession  ;  and  in  case  that 
also  be  disobeyed,  then  a  commission  to  the  sheriff  to  })ut  him 
into  possession. 

10.  Contemner  Enlarged. 

Where  a  party  is  committed  for  the  breach  of  a  decree,  he  is 
not  to  be  enlarged  until  the  decree  be  fully  performed  in  all 
things  which  are  to  be  done  presentl}'.  But  if  there  be  other 
parts  of  the  decree  to  be  performed  at  days,  at  times  to  come, 
then  he  may  be  enlarged  b}^  order  of  the  court  upon  recogni- 
zance, with  sureties  to  be  put  in  for  the  performance  thereof 
*' f/e/M^wro,"  otherwise  not. 

11.  Decree,  Binds  Whom. 

Where  causes  come  to  a  hearing  in  court,  no  decree  bindeth 
any  person  who  was  not  served  with  process  "ac?  avdieiidi(m 
judicium,'^  according  to  the  covirse  of  the  court,  or  did  appear 
"gratis,'^  in  person  in  the  court. 

12.   Privies. 
No  decree  bindeth  any  that  cometh  in  "  bona  fide,''  by  con- 
veyance from  the  defendant  before  the  bill  exhibited,  and  is 
made  no  party,  neither  by  bill  nor  the  order ;  but  where  he 
comes  in  "  j)endente  liie,"  and  while  the  suit  is  in  full  prose- 


380  J<:(iUITY    PLEADING. 

cutioii,  and  without  any  color  of  allowance  or  privity  of  the 
court,  there  regularly  the  decree  bindeth  ;  but  if  there  were 
any  iutermission  of  suit,  or  the  court  made  acquainted  with 
the  conveyance,  the  court  is  to  give  order  upon  the  special 
matter  according  to  justice. 

13.   lies  Judicata. 
Where  causes  are  dismissed  upon  full  hearing,  and  the  dis- 
mission signed  by  the  Lord  Chancellor,  such  causes  shall  not 
be  retained  again,  nor  new  bill  exhibited,  except  it  be  upon 
new  matter,  like  to  the  case  of  the  bill  of  review. 

14.   Former  Judgment. 

In  case  of  all  other  dismissions,  which  are  not  upon 
hearing  of  the  cause,  if  any  new  bill  be  brought,  the  dismis- 
sion is  to  be  pleaded,  and  after  reference  and  rei:)ort  of  the 
contents  of  both  suits,  and  consideration  taken  of  the  former 
orders  and  dismission,  the  court  shall  rule  the  retaining  and 
dismissing  of  the  new  bill,  according  to  justice  and  nature  of 
the  case. 

15.  Suits  on  Void  Contracts. 

All  suits  grounded  upon  wills  nuncupative,  leases  parol,  or 
upon  long  leases  that  tend  to  the  defeating  of  the  king's  ten- 
ures, or  for  the  establishment  of  perpetuities,  or  grounded  upon 
remainders  put  into  the  crown  to  defeat  purchasers;  or  for 
brokage  or  rewards  to  make  marriages  ;  or  for  bargains  at  play 
or  wages  ;  or  for  bargains  for  offices  contrary  to  the  statute  of 
5  and  6  Ed.  VI.,  or  for  contracts  upon  usury  or  simony,  are 
regularly  to  be  dismissed  upon  motion,  if  they  be  the  sole 
effect  of  the  bill  ;  and  if  there  be  no  special  circumstances  to 
move  the  court  to  allow  their  proceedings,  and  all  suits  under 
the  value  of  ten  pounds  are  regularly  to  be  dismissed.  V. 
postea,  sees,  58,  GO. 

10.  Dismissions. 

Dismissions  are  properly  to  be  prayed,  and  had  either  upon 
the  hearing  or  upon  j^lea  unto  the   bill,  when  the  cause  comes 


OKDINAXC'KS.  381 

first  ill  court  ;  but  dismissions  are  not  to  he  pi-ayed  alU-r  tl»e 
parties  have  been  at  cliarge  of  examination,  excejjt  it  be  u})on 
special  cause. 

17.  Dlsrotifliiiiaiicr. 
Jf  tlie  plaintiff  di-scontinue  the  prosecution,  after  all  the 
defendants  have  answered,  above  the  space  of  one  whole  term, 
the  cause  is  to  be  dismissed  of  course  without  any  motion  ; 
but  after  replication  j)ut  in  no  cause  is  to  be  dismissed  without 
motion  and  order  of  tlie  court. 

18.  Election. 

Double  vexation  is  not  to  be  admitted  ;  but  if  the  party 
sue  for  the  same  cause  at  the  common  law  and  in  chancery, 
he  is  to  have  a  day  given  to  make  his  election  where  he  will 
proceed,  and  in  default  of  making-  such  election  to  be  dis- 
missed. 

19.  Certiorari. 

Where  causes  are  removed  by  special  "  certiorari,^'  upon  a 
bill  containing  a  matter  of  equity,  the  plaintiff  is,  upon  receipt 
of  his  writ,  to  put  in  bond  to  prove  his  suggestions  within 
fourteen  days  after  the  receipt ;  which,  if  he  does  not  prove, 
then  upon  certificate  from  either  of  the  examiners,  presented 
to  the  Lord  Chancellor,  the  cause  shall  be  dismis.sed  with  costs, 
and  a  "procedendo"  to  be  granted. 

20.   No  Injunction.  E.c  Parte. 
No  injunction  of  an}'  nature  shall  be  granted,  revived,  dis- 
solved or  stayed  u|)on  any  private  petition. 

21.  Injunction  to  Stay  Action. 
No  injunction  to  .stay  suits  at  common  law  shall  l)e  granted 
upon  priority  of  suit  only,  or  upon  surmise  of  the  ])laintilf' s 
bill  only  ;  but  u])on  matter  confes.sed  in  the  defendant's  answer, 
or  matter  of  record,  or  writing  ])lainly  appearing,  or  when  the 
defendant  is  in  contempt  for  not  answering,  or  that  the  debt 


382  EQUITY    PLEADING. 

desired  to  be  stayed  appeareth  to  be  old,  and  hath  slept  long, 
or  the  creditor  or  the  debtor  hath  been  dead  some  good  time 
before  the  suit  brought. 

22.  Temporary  Injunction. 
Where  the  defendant  appears  not,  but  sits  an  attachment ; 
or  when  he  doth  appear  and  departs  without  answer,  and  is 
under  attachment  for  not  answering;  or  when  he  takes  oath  he 
can  not  answer  without  sight  of  evidences  within  the  country  ; 
or  where,  after  answer,  he  sues  at  common  law  by  attorney, 
and  absents  himself  beyond  seas  ;  in  these  cases  an  injunction 
is  to  be  granted  for  the  stay  of  all  suits  at  common  law  until 
the  party  answer  or  appear  in  person  in  court,  and  the  court 
give  further  order;  but,  nevertheless,  upon  answer  put  in,  if 
there  be  no  motion  made  the  same  term,  or  the  next  general 
seal  after  the  term,  to  continue  the  injunction  in  regard  of  the 
insufficiency  of  the  answer  put  in,  or  in  regard  of  matter 
confessed  in  the  answer,  then  the  injunction  to  die  and  dis- 
solve without  any  special  order. 

23.  Stay  in  Lieu  of  Injunction. 

In  the  case  aforesaid,  where  an  injunction  is  to  be  awarded 
for  stay  of  suits  at  the  common  law,  if  like  suits  bo  in  the 
chancery,  either  by  ''  scire  facias,'^  or  privilege,  or  English  bill, 
then  the  suit  is  to  be  stayed  by  order  of  the  court,  as  it  is  in 
other  courts  by  injunction,  for  that  the  court  cannot  enjoin 
itself. 

24.  Delay  Dissolves. 

Where  an  injunction  hath  been  obtained  for  staying  of  suits, 
and  no  prosecution  is  had  for  the  space  of  three  terms,  the  in- 
junction is  to  fall  of  itself  without  further  motion. 

25.  Injunction  After  Arrest. 
Where  a  bill  comes  in  after  an  arrest  at  the  common  law 
for  debt,  no  injunction  sliall  be  granted  without  Iji'inging  the 
principal  money  into  court,  except  there  appear  in  tlie  defend- 


oltDINANCKS.  383 

ant's  niLSWcr,  or  by  siolit  oi'  wriliiius,  jilaiii  ninttcr  lcn<liii^f  to 
discliai-ge  tlic  dcl/t  in  rciuity;  liut  ifaii  injiinrlion  be  a  warded 
and  (lisobc'vcd,  in  that  ca.-e  no  nioni'V  shall  he  hi-()n<;lit  in,  or 
deposited,  in  regard  of  the  conlenijit. 

20.   For  J^osaessioii. 
Injunctions  for  possession  are  not  to  be  granted  before  a  de- 
cree, but  whei'e  the  ])ossessi<)n  hath  continued   by  the  space  of 
three  years,  before  the  bill  cxliibited,  and  ujion  ihe  same  title  ; 
and  not  upon  any  title,  by  lease,  or  otherwise  determined. 

27.  Same. 
In  case  where  tlie  defendant  sits  all  tlie  process  of  contempt, 
and  can  not  be  found  by  the  seigeant-at-arms,  or  nsists  the 
sergeant,  or  makes  rescue,  a  seqnestiation  shall  lie  granted  of 
the  land  in  (piestion  ;  and  if  the  (lefendant  render  not  him- 
self within  the  year,  then  an  injunction  for  the  possession. 

28.  ArjaiusI  Wayfc. 

Injunctions  against  felling  of  tind)er,  plowing  up  of  ancient 
pastures,  or  for  the  maintaining  of  inclosures,  oi-  the  like,  shall 
be  granted  acct)rding  to  the  circumstances  of  the  case;  but 
not  in  case  where  the  defendant  upon  his  answer  claimeth  an 
estate  of  inheiitance,  excejit  it  be  wheie  he  claimeth  the  land 
in  trust,  or  u{)on  some  othei'  special  ground. 

29.  Scqiicsiratlon. 

No  sequestration  shall  be  granted  but  of  lands,  lenses  or 
goods  in  fpiestion,  and  not  of  any  other  lands  or  goods  not 
contained  in  the  suits. 

80.   Same. 
"Where  a  decree  is  made  for  rent  to  be  j)aid  out  of  land,  or 
a  sum  of  money  to  Ijc  levied  out  of  lh(>  ])rollts  of  land,  there  a 
sequestration    of   the    same    lands,    being   in    the   delendant's 
hands,  may  be  granted. 


384  EQUITY    PLEADING. 

31.  Ancillary  Bill. 
Where  the  decrees  of  the  provincial  council,  or  of  the  court 
of  requests,  or  the  Queen's  Court,  are  by  contumacy  of  other 
means  interrupted,  there  the  Court  of  Chancery,  upon  a  bill 
preferred  for  corroborations,  of  tlie  same  jurisdictions,  decrees, 
and  sentences  shall  give  remedy. 

32.  Evidence,  Order  of. 
Where  any  cause  comes  to  a  hearing,  that  hath  been  formerly 
decreed  in  any  other  of  the  King's  Courts  at  Westminster, 
such  decree  shall  be  first  read,  and  then  to  proceed  to  the  rest 
of  the  evidence  on  both  sides. 

33.  Suits  After  Judgment. 
Suits  after  judgment  may  be  admitted  aocording  to  the  an- 
cient custom  of  the  chancery,  and  the  late  royal  decision  of  his 
majesty,  of  record,  after  solemn  and  great  deliberation;  but  in 
such  suits  it  is  ordered,  that  bond  be  put  in  with  good  sureties 
to  prove  the  suggestions  of  the  bill. 

34.  Same,  Decree  in. 
Decrees  upon  suits  brought  after  judgment  shall  contain  no 
words  to  make  void  or  weaken  the  judgment,  but  shall  only 
correct  the  corrupt  conscience  of  the  party,  and  rule  him  to 
make  restitution,  or  perform  other  acts,  according  to  the  equity 
of  the  cause. 

35.  Megisters. 
The  registers  are  to  be  sworn,  as  has  been  lately  ordered. 

36.  Former  Orders  to  be  Shown  by. 
If  any  order  shall  be  made,  and  the  court  not  informed  of 
the  last  material  order  formerly  made,  no  benefit  shall  be 
taken  by  such  order,  as  granted  by  abuse  and  surrcption,  and 
to  that  end  the  registers  ought  duly  to  mention  the  former 
order  in  the  latter. 


ORDINANCES,  385 

37.  ()r(h  ra  to  Ir  Kniercd  hi/. 
No  order  shall  bcM'Xj.laiiKd  u})oii  any  [nivalc  pctitidii  l»ut 
ill  court  as  they  are  made,  and  the  re»;islor  is  to  set  down  the 
orders  as  they  are  pronounced  by  the  court,  truly  at  his  peril 
without  troubling  the  Lord  Chancellor  by  any  private  attend- 
ing of  him,  to  ex})lain  his  meaning;  and  il"  any  exjilanation 
be  desired,  it  is  to  be  done  by  public  motion,  where  the  other 
party  may  be  heard. 

38.  Orders,  Copy  of. 
No  draught  of  any  order  shall  be  delivered  by  the  register 
to  either  party,  without  keeping  a  copy  by  him,  to  the  end  that 
if  the  order  be  not  entered,  nevertheless  the  court  may  be  in- 
formed what  was  formerly  done,  and  not  put  to  new  trouble 
and  hearing  ;  and  to  the  end  also  that  knowledge  of  orders  be 
not  kept  back  too  long  from  either  party,  but  may  presently 
appear  at  the  office. 

3 P.  Order  of  Reference. 
Where  a  cause  hath  been  debated  upon  hearing  of  both 
parties,  and  opinion  liath  been  delivered  by  tlie  court,  and, 
nevertheless,  the  cause  referred  to  treaty,  the  registers  are  not 
to  admit  the  opinion  of  the  court,  in  drawing  of  the  order  of 
reference,  except  the  court  doth  especially  declare  that  it  be 
entered  without  any  opinion  either  way;  in  which  case,  never- 
theless, the  registers  are  out  of  their  short  note  to  draw  up 
some  more  full  remembrance  of  that  passed  in  court,  to  inform 
the  court  if  the  cause  come  back  and  cannot  be  agreed. 

40.  Suggestions  of  Counsel. 
The  registers,  upon  sending  of  their  draught  unto  the  coun- 
sel of  the  parties,  are  not  to  respect  the  interlineations  or  al- 
terations of  the  said  counsel,  be  the  said  counsel  ever  so  great, 
farther  than  to  put  them  in  remembrance  of  that  wliich  was 
truly  delivered  in  court,  and  so  to  conceive  the  order  upon 
their  oath  and  duty,  without  any  further  res[)ect. 
25 


386  EQUITY    PLEADING. 

41.  Decrees  to  be  Read. 
The  registers  are  to  be  careful  in  the  penning  and  drawing 
up  of  decrees,  and  of  special  matters  of  difHculty  and  weight; 
and,  therefore,  when  they  present  the  same  to  the  Lord  Chan- 
cellor, they  ought  to  give  him  understanding  which  are  such 
decrees  of  weight,  that  they  may  be  read  and  reviewed  before 
his  lordship  sign  them. 

42.  Decrees  at  Rolls. 

The  decrees  granted  at  the  rolls  are  to  be  presented  to  his 
lordship,  with  the  orders  whereupon  they  are  drawn  within 
two  or  three  days  after  every  term. 

43.  Order  for  Injunction. 

Injunctions  for  possession  or  for  stay  of  suits  after  verdict, 
are  to  be  presented  to  his  lordship,  together  with  the  orders 
whereupon  they  go  forth,  that  his  lordship  may  take  consider- 
ation of  the  order  before  he  sign  them. 

44.  Order  Against  Rules. 

Where  any  order  upon  the  special  nature  of  the  case  shall 
be  made  against  any  of  these  general  rules,  there  the  register 
shall  plainly  and  expressly  set  down  the  particulars,  reasons 
and  grounds  moving  the  court  to  vary  from  the  general  use. 

45.    Chancellor  to  Rule  on  Jurisdiction. 
No  reference  upon  demurrer  or  question  touching  the  juris- 
diction of  the  court  shall  be  made  to  the  masters  of  the  chan- 
cery ;  but  such  demurrers  shall  be  heard  and  ruled  in  court, 
or  by  the  Lord  Chancellor  himself. 

46.   Report,  Time  to  Object  to. 
No  order  shall   be  made  for  the  confirming  or  ratifying  of 
any  report  without  day  first  given,  by  the  space  of  a  seven- 
ight  at  the  least,  to  speak  to  it  in  court. 


01{DIXAXCES.  387 

47.  N'o  Rejercnve  After  ExamiiKillmi. 
No  reference  shall  be  made  to  any  masters  of  the  court,  or 
any  other  commissioners,  to  hear  and  determine,  where  tljo 
cause  is  gone  so  far  as  to  examination  of  witnesses,  except  it 
be  in  special  causes  of  parties  near  in  blood,  or  of  extreme 
poverty,  or  by  consent  and  general  rcrcreiicu  ol"  the  cause,  ex- 
"cept  it  be  by  consent  of  the  parties  to  be  sparingly  nranted. 

48.  Report,  Beyond  Order. 

No  report  shall  be  respected  in  court  which  exceedeth  the 
warrant  of  the  order  of  reference. 

49.   blaster,  Duty  of. 

The  masters  of  the  court  are  required  not  to  certify  the 
state  of  any  cause,  as  if  they  would  make  breviate  of  the  evi- 
dence on  both  sides,  which  doth  little  ease  the  court,  but  with 
some  opinion  ;  or,  otherwise,  in  case  they  think  it  too  doubt- 
ful to  give  opinion,  and  therefore  make  such  special  certificate, 
the  cause  is  to  go  on  to  a  judicial  hearing  without  respect  had 
to  the  same. 

50.   Account — Reference — Directions. 

Matters  of  account,  unless  it  be  in  very  weighty  causes,  are 
not  fit  for  the  court,  but  to  be  pre])ared  by  reference,  with  this 
difference,  nevertheless,  that  the  cause  comes  first  to  a  heariiig  ; 
and  upon  the  entrance  into  a  hearing,  they  may  receive  some 
direction,  and  be  turned  over  to  have  the  accounts  considered, 
except  both  parties,  before  a  hearing,  do  consent  to  a  reference 
of  the  examination  of  the  accounts,  to  make  it  more  ready  for 
a  hearing. 

51.    Court-Rolls — Same. 

The  like  course  to  be  taken  for  the  examination  of  court- 
rolls  upon  customs  an<3  copies,  which  shall  not  be  referred  to 
any  one  master,  but  to  two  masters  at  tlie  least. 


388  EQUITY    PLEADING. 

52.   Ansiver,  Exception  to. 
No  reference  to  be  made  of  the  insufficiency  of  an  answer 
without  showing  of  some  particular  point  of  tlie  defect,  and 
not  upon  surmise  of  the  insufficiency  in  general. 

53.  Same,  Trust  Confessed. 

Where  a  trust  is  confessed  by  the  defendant's  answer,  there- 
needeth  no  further  hearing  of  the  cause,  but  a  reference 
presently  to  be  made  upon  the  account,  and  so  to  go  on  to 
hearing  of  the  accounts. 

54.  Costs  on  Frivolous  Suit. 

In  all  suits  where  it  shall  appear,  upon  the  hearing  of  the 
cause,  that  the  plaintiff  had  not  "  probabilem  causam  litigandi," 
he  shall  [)ay  unto  the  defendant  his  utmost  costs,  to  be 
assessed  by  the  court. 

55.  Fine  for  Prolix  Pleading. 

If  any  bill,  answer,  replication,  or  rejoinder  shall  be  found 
of  an  immoderate  length,  both  the  party  and  the  counsel 
under  whose  hand  it  passeth  shall  be  fined. 

56.  Scandal  and  Impertinence. 

If  there  be  contained  in  any  bill,  answer  or  other  pleadings, 
or  interrogatory,  any  matter  libellous  or  slanderous  against 
any  that  is  not  a  party  \o  tlie  suit,  or  against  such  as  are 
parties  to  the  suit,  upon  matters  impertinent,  or  in  derogation 
of  the  settled  authorities  of  any  of  his  majesty's  court,  such 
bills,  answers,  pleadings  or  interrogatories,  shall  be  taken  off 
the  file  and  suppressed,  and  the  parties  severally  punished  by 
commitment  or  ignominy  as  shall  be  thought  fit  for  the  abuse 
of  the  court ;  and  the  counselors  at  law,  who  have  set  their 
hands,  shall  likewise  receive  reproof  or  punishment  if  cause  be. 

57.  Demurrers  and  Pleas,  Heard  When. 
Demurrers  and  pleas  which  tend  to  discharge  the  suit  shall 
be  heard  first  upon  every  day  of  orders,  that  the  subject  may 
know  whether  he  shall  need  further  attendance  or  no. 


OIJ  1)1  NANCES.  389 

58.  >Sa Die — DcJiiiKion . 
A  demurrer  is  i)roper]y  upnii  iiiadei'  defective,  contained  in 
the  bill  itself,  and  no  foreign  matter  ;  but  a  }»lea  is  of  ibreign 
matter  to  discharge  or  stay  the  suit,  as  that  the  cause  hath 
been  formerly  dismissed,  or  that  the  iilaintilf  is  outlawed,  or 
excommunicated  ;  or  there  is  another  bill  depending  tor  the 
same  cause,  or  tlie  like  ;  and  such  plea  may  be  put  in  without 
oath,  in  case  where  the  matter  of  the  plea  ai)})ear  upon  record  ; 
but  if  it  be  anything  that  does  not  a}»j)ear  upim  record  the 
plea  must  be  upon  oath. 

59.   Certain  Fleas. 

No  plea  of  outlawry  shall  be  allowed  without  i)leading  the 
record  "sub  pcde  sigiUi;"  nor  plea  of  excommunication, 
without  the  seal  of  the  ordinary. 

60.  Demurrer  to  Suit^i  on  Void  Contracts. 

Where  any  suit  appeareth  upon  the  bill  to  be  of  tlie  natures 
which  are  regularly  to  be  dismissed  according  to  the  fifteenth 
ordinance,  such  matter  is  to  be  set  forth  by  wa}'  of  demurrer 

61.  Ansiver  Insufficient,  Costs  on. 

Where  an  answer  shall  be  certified  insufficient,  the  defend- 
ant is  to  pay  costs  ;  and  if  a  second  answer  be  returned  insuf- 
ficient, in  the  points  before  certified  insufficient,  then  double 
costs,  and  u})on  the  third,  treble  costs,  and  upon  the  fourth. 
quadru})le  costs,  and  then  to  be  committed  also  until  lie  hath 
made  a  perfect  answer,  and  to  be  examined  upon  interroga- 
tories touching  the  points  defective  in  his  answer;  but  if  any 
answer  be  certified  sufficient,  the  plaiiitilf  is  to  })ay  costs. 

62.  Same — Waiver  of. 

No  insufficient  answer  can  be  taken  hold  of  after  replication 
I)ut  in,  because  it  is  admitted  sufiicient  by  the  replication. 


390  EQUITY    PLEADING. 

63.  Denials  i)i  Ansivc7\ 
An  answer  to  a  matter  charged  as  the  defendant's  ow,n  fact 
must  be  direct,  without  saying  it  is  to  his  remembrance,  or  as 
he  beheveth,  if  it  be  laid  down  within  seven  years  before ;  and 
if  the  defendant  deny  the  fact,  he  must  traverse  it  directl}'^, 
and  not  by  way  of  negative  pregnant ;  as  if  a  fact  be  laid  to 
be  done  with  divers  circumstances,  the  defendant  may  not 
traverse  it  literally  as  it  is  laid  in  the  bill,  but  must  traverse 
the  point  of  substance  ;  so  if  he  be  charged  Avith  the  recei})t  of 
one  hundred  pounds,  he  must  traverse  that  he  hath  not 
received  a  hundred  pounds,  or  any  part  thereof;  and  if  he 
have  received  part,  he  must  set  forth  what  part. 

64.  Hearing  on  Bill  and  Ansiuer. 
If  a  hearing  be  prayed  upon  bill  and  answer,  the  answer 
must  be  admitted  to  be  true  in  all  points,  and  a  decree  ought 
not  to  be  made,  but  upon  hearing  the  answer  read  in  court. 

65.  No  Counsel — Answer  Read. 
AVhere  no  counsel  appears  for  the  defendant  at  the  hearing, 
and  the  process  appears  to  have  been  served,  the  answer  of 
such  defendant  is  to  be  read  in  court. 

Q(^.   Replication. 
No  new  matter  is  to  be  contained  in  any  replication,  except 
it  be  to  avoid  matter  set  forth  in  the  defendant's  answer. 

67.  Copies. 
All  copies  in  chancery  shall  contain  fifteen  lines  in  every 
sheet  thereof,  written  orderly  and  unwastefully,  unto  which 
shall  be  subscribed  the  name  of  the  principal  clerk  of  the  of- 
fice where  it  is  written,  or  his  deputy  for  whom  he  will  answer, 
for  which  only  subscription  no  fee  at  all  shall  be  taken. 

6 8 .    Commission s — Dep ositions. 
All   commissions   for   examinations    of  witnesses    shall    be 
"super  interr.  inclusis"  only,  and  no  return  of  depositions  into 


ORDINANCES.  .'  '• '  1 

the  court  shall  be  received  but  such  only  as  shall  be  either 
compromised  in  one  roll  subscribed  with  the  name  of  tho 
commissioners,  or  else  in  divers  roll.<<,  whereof  each  one  shall 
be  so  subscribed. 

60.  Same — Joiuder  in. 

If  both  parties  join  in  commission,  and  upon  warning  given 
the  defendant  bring  his  commissioners,  but  produceth  no  wit- 
nesses, nor  ministerelh  interrogatories,  but  after  seek  a  new 
commission,  the  same  shall  not  be  granted  ;  but,  nevertheless, 
upon  some  extraordinary  excuse  of  the  defendant's  default,  he 
ma}'^  have  liberty  granted  by  s})ecial  order  to  examine  his  wit- 
nesses in  court  upon  the  former  interrogatories,  giving  the 
plaintiff'  or  his  attorney  notice  that  he  may  examine  also 
if  he  will. 

70.   Examination  of  Defendant. 

The  defendant  is  not  to  be  examined  upon  interrogatories, 
except  it  be  in  very  special  cases,  by  express  order  of  the  court, 
to  sift  out  some  fraud  or  practice  pregnantl}''  appearing  to  the 
court,  or  otherwise  upon  offer  of  the  plaintiff  to  be  concluded 
by  the  answer  of  the  defendant  without  any  liberty  to  dis- 
prove such  answer,  or  to  impeach  him  after  a  perjury. 

71.  Record  of  Other  Causes. 

Decrees  in  other  courts  may  be  read  upon  hearing  without 
the  warrant  of  any  special  order  ;  but  no  depositions  taken  in 
any  other  court  are  to  be  read  but  by  special  order  ;  and  regu- 
larly the  court  granteth  no  order  for  reading  of  depositions, 
except  it  be  between  the  same  parties,  and  upon  the  same  title 
and  cause  of  suit. 

72.    hnpcaehing  M'iinesx. 

No  examination  is  to  be  had  of  the  credit  of  any  witness 
but  by  special  ordei",  which  is  sparingly  to  be  granted. 


302  EQUITY    PLEADING. 

73.  Evidence  in  Perpetuam. 
Witnesses  shall  not  be  examined  "  in  perpetuam  rei  mcmor- 
iam,"  except  it  be  on  the  ground  of  a  bill  first  put  in,  an  answer 
thereunto  made,  and  the  defendant  or  his  attorney  made  ac- 
quainted with  the  names  of  the  witnesses  that  the  plaintiff 
would  have  examined,  and  so  publication  to  be  of  such  wit- 
nesses;  and  this  restraint  nevei'theless  that  no  benefit  shall  be 
taken  of  the  depositions  of  such  witnesses,  in  case  they  may  be 
brought  "viva  voce"  upon  the  trial,  but  only  to  be  used  in 
case  of  death  before  the  trial,  or  age,  or  impotency,  or  absence 
out  of  the  realm  at  the  trial. 

74.  No  Testimony  After  Publication. 
No  witnesses  shall  be  examined  after  publication,  except  it 
be    by  consent    or    by  special    order,    "  ad   informandum  con- 
scientiam  judiciis,"  and  then  to  be  brought  close  sealed,  up  to 
the  court  to  peruse  or  publish,  as  the  court  shall  think  good. 

7~).  Afjidavit  not  Evidence. 
No  affidavit  shall  be  taken  or  admitted  by  any  master  of 
the  chancery  tending  to  the  i)roof  or  disproof  of  the  title  or 
matter  in  question,  or  touching  the  merits  of  the  cause ; 
neither  shall  any  such  matter  be  colorably  inserted  in  any 
affidavit  for  serving  of  process. 

76.    Coimter  Affidavit. 
No  affidavit  shall  be  taken  against  affidavit,  as  far  as  the 
masters  of  chancer}^  can  have  knowledge  ;  and  if  any  such  be 
taken,  the  latter  affidavit  shall  not  be  used  nor  read  in  court. 

77.  Contempts^  Proceeding  in. 
In  case  of  contcm])t  grounded  u})on  force  or  ill  words  upon 
serving  of  process,  or  upon  words  of  scandal  of  the  court 
] proved  by  affidavit,  the  party  is  forthwith  to  stand  committed  ; 
but ,  for  other  contempts  against  the  orders  or  decrees  of  the 
court,  an  ailachmont  goes  forth  :  first  ujion  an  affidavit  made, 


OKDINANCKS.  393 

and  then  the  party  is  to  be  exaiiiiiicd  u[m)1i  iiitrri'<»<iat()rios, 
and  his  examination  lerened  :  and  il".  upon  his  examination, 
he  confess  matter  of  contempt,  he  isdo  be  committed  :  if  not, 
the  adverse  party  may  examine  witnesst's  to  prove  thi'  con- 
tempt; and,  therefore,  if  the  contempt  ap[)i'ar  the  party  is  to 
be  committed  ;  but,  if  not,  or  if  the  party  that  pursues  the 
contempt  do  fail  in  putting  in  interrogatories,  or  other  prose- 
cution, or  f[iil  in  the  proof  of  the  contempt,  then  tlie  i)arty 
charged  with  the  contempt  is  to  be  discharged  with  good  costs. 

78.    Contemner  not  to  be  Heard. 
They  that  are  in  contempt,  specially  so  far  as  i)roclamation 
of  rebellion,  are  not  to  be  heard,  neither  in  that  suit,  nor  any 
other,  except  the  court  of  special  grace  suspend  the  contempt. 

79.  Discharged,  When. 
Imprisonment  upon  contempt  for  matters  past  may  be  dis- 
charged of  grace  after  sufficient  punishment  or  otherwise  dis- 
pensed with  ;  but,  if  the  imprisonment  be  for  not  pei'formance 
of  any  order  of  the  court  in  force,  they  ought  not  to  be  dis- 
charged except  they  first  obey,  but  the  contempt  may  be 
suspended  for  a  time. 

80.  No  E.xtraordinary  Order  E.v  Parte. 
Injunction,  sequestrations,  dismissions,  retainers  upon  dis- 
missions, or  final  orders,  are  not  to  be  granted  upon  jjctitions. 

81.   Former  Order  Altered^  Ilow. 
No  former  order  made  in  court  is  to  be  altered,  crossed,  or 
explained  upon  any  })etition  ;  but  such  orders  may  be  stayed 
upon  petition  for  a  small  stay,  until  the  matter  may  be  moved 
in  court. 

82.   No  Ex  Parte   Order  on  Depositions. 
No  commission  for  examination  of  witnesses  shall   be  dis- 
charged, nor  no  examinations  or  de[)osition  shall  be  supj)ressed 


394  EQUITY    PLEADING. 

upon  petition,  except  it  be  n])Oii  point  of  course  of  the  court 
first  referred  to  the  clerks,  and  certificate  thereupon. 

83.  Same,  on  Demurrer. 
No  demurrer  shall  be  overruled  upon  petition. 

84.  Scire  Facias. 
No  "scire  facias^'  shall  be  awarded  upon  recognizances  not 
enrolled,  nor  upon  recognizances  enrolled,  unless  it  be  upon 
examination  of  the  record  with  the  writ ;  nor  no  recognizance 
shall  be  enrolled  after  the  year,  except  it  be  upon  special 
order  from  the  Lord  Chancellor. 

85.  Extraordinary  Process. 
No  writ  of  "  iie  exeat  regnnm,"  prohibition,  consultation,, 
statute  of  Northampton,  ''certiorari^'  special,  "procedendo" 
special,  or  "certiorari"  or  "  procede7ido  "  general,  more  than 
once  in  the  same  cause;  Jiabcas  corpus,  or  "corpus  cum 
causa,  vi  laica  removenda,"  or  restitution  thereupon,  "  de  coro- 
natore  et  viridario  eligendo,"  in  case  of  a  moving  "  de  homine 
repleg.  assiz."  or  special  patent,  "  de  ballivo  amovena,  certiorari 
super  praesentationibus  fact,  coram  commissar  Us,  sewar,"  or  "  ad 
quod  damnum,"  shall  pass  without  warrant  under  the  Lord 
Chancellor's  hand,  and  signed  by  him,  save  such  writs  "  ac? 
(juod  damnum,"  as  shall  be  signed  by  master  attorney. 

86.  Writs  of  Privilege. 
Writs  of  privilege  are  to  be  reduced  to  a  better  rule,  both 
for  the  number  of  persons  that  shall  be  privileged,  and  for  the 
case  of  the  privilege  ;  and  as  for  the  number,  it  shall  be  set 
down  by  schedule  ;  for  the  case,  it  is  to  be  understood,  that 
besides  persons  privileged  as  attendants  upon  the  court  suit- 
ors and  witnesses  are  only  to  have  privilege  "  eundo,  rede- 
undo,  et  morando,"  for  their  necessary  attendance,  and  not 
otherwise ;  and  that  such  writ  of  privilege  dischargeth  only 
an  arrest  upon  the  first  process,  but  yet,  where  at  such  times 


ORDIXAN'CES.  305 

of  necessary  atteiulance  tlio  j)arty  is  taken  in  execution,  it  is  a 
contempt  to  the  court,  and  accordingly  to  be  puni.shcd. 

87.  Supplicavit. 

No  "  sujyplicavit "  for  the  good  beliavior  sliall  l)e  granted, 
but  upon  articles  grounded  upon  the  oath  of  two  at  the  least, 
or  certificate  upon  any  one  justice  of  assize,  or  two  justices  of 
the  peace,  with  affidavit  that  it  is  in  their  hands,  or  by 
order  of  tlie  star  chamber,  or  chancery,  or  other  of  the  king's 
courts. 

88.  Peace  Bond. 

No  recognizance  of  the  good  behavior,  or  the  peace,  taken 
in  the  country,  and  certified  into  the  petty-bag,  shall  be  filed 
in  the  year  without  warrant  from  the  Lord  Chancellor. 

89.  Ne  Exeat  Regno. 
Writs  of  '' ne  exeat  regno"  are  properly  to  he  granted  ac- 
cording to  the  suggestion  of  the  writ,  in  respect  of  attempts 
prejudicial  to  the  king  and  state,  in  which  case  the  Lord  Chan 
cellor  will  grant  them  upon  ])rayer  of  any  of  the  principal 
secretaries  without  cause  showing,  or  upon  such  information 
as  his  lordship  shall  think  of  weight ;  but  otherwise  also  they 
may  be  granted,  according  to  the  practice  of  long  time  used, 
in  case  of  interlopers  in  trade,  great  bankrupts,  in  whose 
estate  many  subjects  are  interested,  or  other  cases  that  con- 
cern multitudes  of  the  king's  subjects,  also  in  cases  of  duels, 
and  divers  others. 

90.   RefiiDi  of  Process. 

All  writs,  certificates,  and  whatsoever  other  process  "  rcf. 
coram  Rege  in  Cane."  shall  be  brought  into  the  chapel  of  the 
rolls,  within  convenient  time  after  the  return  thereof,  and  shall 
be  there  filed  upon  their  proper  files  and  bundles  as  they  ought 
to  be ;  except  the  deposition  of  witnesses,  which  may  remain 
with  any  of  the  six  clerks  by  the  space  of  one  year  next  after 


396  EQUITY    PLEADING. 

the  cause  shall  be  determined  by  decree,  or  otherwise  be  dis- 
missed. 

91.  Injunction,  to  be  Enrolled. 
All  injunctions  shall  be  enrolled,  or  the  transcript  filed,  to 
the  end  that,  if  occasion  be,  the  court  may  take  order  to  award 
writs  of  "  scire  facias"  thereupon,  as  in  ancient  time  hath  been 
used. 

92.  Return-Day,  Calendar. 
All  days  given  b}^  the  court  to  sheriffs  to  return  their  writs, 
or  bring  in  their  prisoners  upon  writs  of  privilege,  or  other- 
wise between  party  and  party,  shall  be  filed,  either  in  the 
register's  office,  or  in  the  petty-bag,  respectively ;  :and  all 
recognizances,  taken  to  the  king's  use  or  unto  the  court,  shall 
be  duly  enrolled  in  convenient  time  with  the  clerks  of  the 
enrollment,  and  calendars  made  of  them,  and  the  calendars, 
every  Michaelmas  term,  to  be  presented  to  the  Lord  Chan- 
cellor. 

93.  Charitable  Uses,  Commission. 
In  case  of  suits  upon  the  commission  for  charitable  uses, 
to  avoid  charges,  there  shall  need  no  Idll,  but  only  exceptions 
to  the  decree,  an  answer  forthwith  to  be  made  thereunto  ;  and 
thereupon,  and  upon  sight  of  the  inquisition,  and  the  decree 
brought  unto  the  Lord  Chancellor  by  the  clerk  of  the  petty- 
bag,  his  lordship,  upon  perusal  thereof,  will  give  order  under 
his  hand  for  an  absolute  decree  to  be  drawn  up. 

94.  Commissioners  of  Sewers,  A])pointed,  Hoiu. 
Upon  suit  for  the  commission  of  sewers,  the  names  of  those 
that  are  desired  to  be  commissioners  are  to  be  presented  to  the 
Lord  Chancellor  in  writing  ;  then  his  lordshij)  will  send  the 
name  of  some  privy  counselor,  lieutenant  of  the  shire,  or 
justice  of  assize,  being  resident  in  the  parts  for  which  the  com- 
mission is  prayed,  to  consider  of  them,  that  they  be  not  put  in 
for  private   respects ;    and   upon  the  return  of  such  opinion 


OKDINANCES.  1)07 

his  lordship   will  give   furthiT   orders   lor   the   eoininission    to 
pass. 

95.    Tenure  of  0(lice. 

No  new  commission  of  sewers  shall  be  granted  while  the 
first  is  in  force,  except  it  be  upon  discovery  of  abuse  or  fault 
in  the  first  commissioners,  or  otherwise  upon  some  great  or 
weighty  ground. 

96.    Commission  of  Bankruptcy. 

No  commission  of  bankrupt  shall  be  granted  but  upon 
petition  first  exhibited  to  the  Lord  Chancellor,  together  with 
the  names  presented  of  which  his  lordship  will  take  consider- 
ation, and  always  mingle  some  learned  in  the  law  with  the 
rest;  yet  so  as  care  be  taken  that  the  same  parties  be  not  too 
often  used  in  commissions  ;  and  likewise  care  is  to  be  taken 
that  bond  with  good  security  be  entered  into,  in  ^'200  at 
least,  to  prove  him  a  bankrupt. 

97.    Commissio)!  of  Delegates. 

No  commission  of  delegates  in  any  cause  of  weight  shall  be 
awarded,  but  upon  petition  preferred  to  the  Lord  Chancellor, 
who  will  name  the  commissioners  himself,  to  the  end  they 
may  be  persons  of  convenient  quality,  having  regard  to  the 
weight  of  the  cause  and  the  dignity  of  the  court  from  whence 
the  appeal  is. 

98.  Poor  Persons. 

Any  man  shall  be  admitted  to  defend  ^'  forma  pauperis,^^ 
upon  oath,  but  for  plaintiffs  tliey  are  ordinarily  to  be  referred 
to  the  courts  of  request,  or  to  the  provincial  councils,  if  the 
case  arise  in  those  jurisdictions,  or  to  some  gentleman  in  the 
country,  except  it  be  in  some  special  cases  of  commiseration, 
or  potency  of  the  adverse  party. 


398  EQUITY    PLEADING. 

99.  Insurance  Suits. 
Licenses  to  collect  for  losses  by  fire  or  water  are  not  to  be 
granted,  but  upon  good  certificate;  and  not  for  decays,  or  surety- 
ship, or  debt  or  any  other  casualties  whatsoever,  and  they  are 
rarely  to  be  renewed  ;  and  they  are  to  be  directed  over  unto 
the  county  where  the  loss  did  arise,  if  it  were  by  fire,  and  the 
counties  that  abut  upon  it,  as  the  case  shall  require  ;  and  if  it 
were  by  sea,  then  unto  the  county  where  the  port  is  from 
whence  the  ship  went,  and  to  some  sea-counties  adjoining. 

100.  Exemp  lifications. 
No  exemplification  shall  be  made  of  letters  patent,  "  inter 
alia,'"  with  omission  of  the  general  words ;  nor  of  records 
made  void  or  cancelled  ;  nor  of  the  decrees  of  this  court 
not  enrolled ;  nor  of  depositions  by  parcel  and  fractions, 
omitting  the  residue  of  the  depositions  in  court,  to  which  the 
hand  of  the  examiner  is  not  subscribed  ;  nor  the  records  of 
the  court  not  being  enrolled  or  filed ;  nor  of  records  of  any 
other  court,  before  the  same  be  duly  certified  to  this  court, 
and  orderly  filed  here  ;  nor  of  any  records  upon  the  sight  and 
examination  of  any  copy  in  paper,  but  upoii  sight  and  exam- 
ination of  the  original. 

101.  Amendments. 
And  because  time  and  experience  may  discover  some  of 
these  rules  to  be  inconvenient,  and  some  other  to  be  fit  to  be 
added  ;  therefore  his  lordship  intendeth  in  any  such  case 
from  time  to  time  to  publish  any  such  revocations  or  ad- 
ditions. 


INDEX  TO  EQUITY  RULES. 


56 

275 

78 

200 

.".1 

371 

!)1 

oJ) 

■M) 

273-4 

28 

273 

29 

273 

Ittile.         Pngc. 
Ab.atenient,  Iiow  suits  m;iy  be  revived  on  abatement  l)y 

death  of  either  p.irty  

Accounts,  how  same  i)rodnced  before  master 

Affidavit  of  defendant  to  accompany  demurrers  or  pleas  , 
Affirmation,  when  to  be  made  in  lieu  of  oatli         .... 
Amendment,  «?eneral  provisions  respecting  bills  ....    28-;5(i 
when  plaintiff   may  amend,  as  matter  of 

course  

after  answer,  i)lea,  demurrer,  or  replication 
when  amendment  shall  be  deemed  aban- 
doned                ...  30  274 
of  bills  by  leave  of  court  when  matter  al- 
leged in  answer  makes  amendment  neces- 
sary          45  17G 

j)laintiff  not  entitled  as  of  conr.se  to  amend 
where  he  proceeds  to  a  hearing,  notwitli- 
standing  objection  for  want  of   parties 

taken  by  answer 

when  answers  may  be  amended    .    . 

Answers,  tiling  of  .    .  

taxable  costs  for     

general  provisions  respecting ."9— !(>    143-141 

as  to  contents  of 

provisions  as   to  answer  of  dnfendant  where 
complainant  waives  answer  under  oath     .    . 

to  certain  interrogatories  in  bill 

effect  of  defendant  declining  to  answer  inter- 
rogatories  

provisions  as  to  supi)lemental    ...  ■       ■ 

before  whom  verified 

how  and  when  amended 

general  i)rovision  as  to  excei)tions  to Gl-(i5      177 

time  for  tiling  exceptions  to   .  (d  177 

l)rovisions  for  costs  where  separate  answers  are 

tiled  by  same  solicitor       ()2  177 

hearing  exceptions  to  answer  for  insutliciency  .         03  178 

(  399  ) 


52 

144 

60 

274 

1 

14 

25 

-\C> 

143-141 

--10 

143-141 

40 

40 

44 

46 

50 

60 

274 

93 

361 

]7 

140 

7 

lOG 

8 

370 

54 

78 

82 

207 

1 

14 

400  EQUITY    PLEADING. 

Rule.         Page. 

Answers,  proceedings  wlien  exceptions  to  answer  are  al- 
lowed on  hearing 64  179 

proceedings  when  exceptions    to  answer  are 

overruled 65  177 

wliere  answer  to  original  bill  shall  be  made  be- 
fore   original  plaintiff    can   be   compelled    to 

answer  cross  bill  72  334 

Appeals,  provisions  as  to  suspending  or  modifying  injunc- 
tions duting  the  pendenc}'  of  an  appeal 

Appearance,  when  defendant  must  appear 

Argument.     (Sfe  Hearing.) 

Attachment,  provisions  as  to  writ  of 

attachment    after 
final  decree   .   .   . 
when  writ  of  attachment  to  issue  to  compel 
defendant  to  make  a  better  answer  to  the 

matter  of  exceptions 

by  master  for  his  compensation 

Bills,  filing  of 

when  bills  may  be  taken  pro  confesso  against  the  de- 
fendant, and  proceeding  thereon 18  133 

decree  may  be  entered  when  bill  is  taken  pro 

coiifcsso 

general  frame  of 20-25 

commencement  and  ending  of 

provisions  as  to  contents  of 

respecting  necessary  or 
proper  parties     .   .   . 

prayer  in 

how  signed  by  counsel 

taxable  costs  for 

several  provisions  as  to  scandal  and  impertinence  in  26-27 

general  provisions  as  to  amendment  to 28-30 

provisions  as  to  interrogatories  in  the  interrogating 

part  of 41-43      145-56 

amendment  of,  by  leave  of  court  when  matter 
alleged  in  answer  makes  amendment  necessary  .         45  176 

general  provisions  as  to  parties  to 47-53    179-144 

nominal  parties  to  ...   .         54  78 

brongiit  by  stockholders  in  a  corporation  against 
the  corporation  and  other  parties;  how  verified, 
and  what  allegations  must  be  contained  therein  .         94  56 

]5ills  of  revivor,  general  provisions  as  to  same 06-08    275- 

contents  of 58  275 

Certificate  of  counsel  to  accompany  demurrers  and  pleas       31  371 


19 

133 

-25 

55-142 

20 

55 

21 

55 

22 

56 

23 

58 

23 

58 

25 

142 

-27 

142 

■30 

273  274 

Hiilc. 

rnjrp. 

1 

U 

89 

:571 

•) 

U 

4 

1.) 

5 

].> 

o 

14 

07 

201 

7S 

2(M} 

1 

U 

G7 

201 

INDKX    TO    EQUITY     KILKS.  401 


Circuit  courts  alAvnys  to  be  open  for  certiiiii  purposes 

provisions  as  to  tlie  makiiiu:  ol'  rules  liy 

judges  tiiereof  

Clerk,  duties  of  same  

to  enter  motions,  rules,  orders,  etc.,  in  order  book 
certain   motions   and   applications  .urantable    of 

course  by  clerk  

Clerk's  otlice,  provisions  as  to  same 

Commissioners  for  taking  testimony,  how  to  be  named  . 
bow  witnesses  may  be  compelled  to  apjiear 

before  them  and  testify 

Commissions,  issuing  and  return  of 

when  and  how  to  Issue  .  .  

provisions  as  to  publication  and  opening 
same  in  clerk's  office.  G9  204 

Corporations,  bills  brought  by  stockholders  in  a  corpora- 
tion against  the  corporation  and  other  parties,  how  veri- 
fied and  what  allegations  must  be  contained  therein    .         94  56 
Costs,  where  separate  answers  are  tiled  and  the  same  .solic- 
itor is  employed  for  two  or  more  del'endants  .    .         62            17  7 
provisions  for  payment  of,  when  exceptions  for 
frivolous  causes  or  delay  are  filed  to  master's 

report 84  200 

Counsel,  signature  of,  to  be  affixed  to  bill,  provisions  as 

to  same 

Cross  bill,  provisions  as  to  same 

Death,  iiow  suits  niav  be  revived  on  death  of  eitiier  party 
Delieneesse  examination,  when  and  how  same  may  betaken 
Decree,  provisions  as  to  entry  of  decree  when  bill  is  fjvo 

con/esso  against  the  defendant 18-19  !.".:$ 

for  an  account  of  the  personal  estate  of  a  testator 
or  intestate  on  reference  to  master,  etc  ... 

corrections  of  clerical  mi.stakes  in 

contents  of •    • 

what  the  decree  in  a  suit  for  foreclosure  of  a 

mortgage  may  provide  for 

Default  of  defendant,  jjroceedings  tiiat  may   be  taken 

thereon         

when  decree  may  be  entered  and  bill  taken  pro 

coiifesso 

Defendant,  when  he  must  appear    ...  .... 

bills  may  be  taken  pro  coji/csso  against 
defendant,  and  jjrocecdings  thereon  . 
decree  may  beentered  and  bill  taken  ])ro 
confesso  against  the  del'cndant    .   .   . 
26 


24 

55) 

72 

:j:j4 

5(> 

27.J 

70 

204 

73 

289 

85 

290 

86 

289 

92 

289 

18 

i:]:i 

19 

133 

17 

140 

18 

133 

19 

133 

31 

371 

32 

143 

33 

170 

402  EQUITY    PLEADING. 

Rule.         Page. 

Demurrers,  SPiieral  provisions  as  to 31-38    371-146/ 

to  be  acconipjiuied  by  certificate  of  counsel, 

etc.,  ]irovi.si()iis  respecting 

t  to  wluit  defendant  may  den)ur 

proceedings  by  plaintiff  on  demurrer  .... 
provisions  as  to  case  wliere  demurrer  is  over- 
ruled             34  177 

provisions  as  to  case  where  demurrer  is  al- 
lowed   35  177 

where  demurrer  will  not  be  overruled    .    .   .   36-37   145-146 
-effect  of  not  setting  down  demurrer  for  aj'gu- 

ment  at  certain  time £8  14C 

time  wlien  demurrer  is  to  be  set  down  for 

argument         38  146 

Depositions,  how  taken  when  evidence  is  to  be  taken  orally       67  201 

testimony  is  to  be  taken  by  deposition 

according  to  act  of  Congress  ...         68  204 

provisions  as  to  publication  and  opiening  of 

same  in  clerk's  office 69  204 

Discovery,  provision  as  to  the  filing  of  a  cross  bill  for  .  .         72  334 

Dismissal,  Miien  bill  shall  be  dismissed 38  i4S  / ?^ 

court  may  dismiss  a  bill  where  plaintiff  pro- 
ceeds to  a  liearing,  notwithstanding  objec- 
tion for  want  of  i)arties,  taken  by  answer  55  144 
of  suit  for  failure  to  file  replication         '.       .         66  175) 
Evidence,  how  taken  down  before  master  in  certain  cases.        81             207 
Examinatitm,  how  to  take  and  return  depositions  of  wit- 
nesses examined  orally  67            201 

Examiner,  how  witnesses  may  be  compelled   to  appear 

before  him  and  testify  78  200 

Exceptions,  piovisjons  as  to  exceptions  to  bills  for  scan- 

.  dal  and  impertinence 26-27  142 

hearing  exceptions  to-answer  for  insufficiency      -63  178 

proceedings  when  exceptions  to  answers  are 

allowed  on  hearing  ...  64  179 

"to  report  of  master,  time  of  filing  excei)tions 
thereto,  and  confirmation  of  report  if  no 
exceptions  are  filed  ....  83  209 

provisions  to  prevent  the  filing  of  exceptions 
to  reports  f(jr  frivolous  causes  or  delay 
Execution,  writ  of,  provision  as  to  same     ....... 

Piling  of  pleadings,  etc    ....  

Foreclosure,  what  the  decree  in  a  suit  for  foreclosure  of 

a  mortgage  may  lu'ovide  for 

Guardians  «tZ  Z(7f»i,  how  appointed 


84 

209 

8 

370 

7 

100 

92 

2^9 

87 

78 

INDEX    TO    KC^ITY     RILES.  4Uu 

Rule.  I'lifie. 

Ileaiiiif?,  case  wlien  dcieiulant,  by  answer,  suggests  tliat 

bill  is  defective  for  want  of  parlies 5-'  144 

proceedings  for. hearing  where  exceptions  are 

filed  to  answer G3  IIH 

of  reference  before  master,  when  to  be  brought 

on         74  2(>.'> 

Impertinence  in  bills  not  permitted;  will  be  struck  out 

on  exception 12(1  142 

general  provisions  as  to  eliminatiuu  of  im- 
pertinence in  bills i!(>-li7  142 

Infants,  how  they  may  sue 87  78 

Injunctions,  provisions  as  to  the  granting  of  injunctions 

when  asked  for  by  bill  to 
stay  proceedings  at  law  .        55  207 

susi)ending    or    amending 
injunctions    during    the 
pendency  of  an  appeal  . 
Interrogatories,  provisions  as  to  the  interrogating  part 

of  bills 41- 

form  of  last  of  the  written  interrogatories 
to  take  testimony    ... 

Issue, suit  v.hen  deemed  at  issue 

Judges,  provisions  as  to  granting  orders,  etc.,  by  judges 

of  circuit  court  in  vacation  and  term 

Marshal,  provisions  as  to  service  of  process  by 

Master,  general  ])rovisions  as  to  reference  to  and  proceed- 
ings before  them  73- 

reference  to,  if  any  decree  for  account  of  personal 

estate  of  a  testator  or  intestate  . 

when  to  be  brought  on  f(;r  hearing 

proceedings  on  reference  before 

what  report  of  master,  on  reference  before  him 

shall  contain 

pow'er  of  same  on  reference    ... 

how  witnesses  may  be  compelled  to  appear  before 

him  and  testify  on  reference 78  2<)(> 

form  in  which  accounts  shall  be  produced  before 

him 

what  paper  may  be  used  before  him  on  a  reference 
persons  whom  master  is  at  liberty  to  examine  on 

reference 

in  chancery,  how'  appointed 

provisions  as  to  the  filing  of  master's  report  and 

the  filing  of  exceptions  thereto 

Mistakes  in  decree,  etc.,  how  corrected 


9;; 

361 

43 

U5-o(; 

71 

2(>:J 

UG 

175) 

3 

U 

15 

107 

-82 

28t)  207 

73 

2s«> 

74 

20.> 

75 

205 

7() 

2(K> 

77 

LOG 

79 

207 

80 

207 

81 

207 

82 

207 

S3 

205) 

85 

200 

404  EQUITY    PLEADING. 

Rule. 

Motions,  when  tliey  may  be  made  in  courts  of  equity     .  1  14 

Avhat  are  to  be  deemed  motions  and  applications 

g'rantable  of  course ■  5  15 

\Yliatare  not  grantable  of  course,  how  and  wlien 

heard 6  16 

Notice,  provisions  for  notice  of  application  for  certain 

orders 

what  to  be  deemed  notice  in  certain  cases 

to  be  given  for  examination  of  witnesses  .... 

provisions  as  to  notice  for  de  hene  esse  examina 

tion  of  witnesses 

Oath  {See  Aflfirmalion) 

Orders,  when  tliey  may  be  made  in  courts  of  equity     .    . 

Parties,  court  n)ay  make  a  decree  saving  riglitsof  absent 

parlies  at  trial   where  defendant  suggests  a 

defect     ....  

provisions  as  to  nominal  parties  to  bill     .... 

to  bills,  wlien  court  may  proceed  witliout  u)ak- 

ing  certain  persons  iiarties 

parties    may   be    dispensed    with 

when  very  numerous,  etc       .    . 

not  neces-sary  to  make  cestuis  que 

trust  parties  to  suit 

in  suits  to  execute  trust  in  a  will    .   • 
in  cases  of  a  joint  and  several  demand 

either  as  principals  or  sureties    .   . 
provisions  for  the  hearing  of  a  case  when 
defendant  by  answer  suggests  that  bill 
is  defective  for  want  of  parties    .    .    . 
Petitions  for  rehearing,  wlien  they  can  l)e  applied  for 

Pleadings,  filing  of  

Pleas,  to  be  accompanied  by  certificate  of  counsel,  etc, 

provisions  respecting  same 

to  what  defendant  may  plead 

proceedings  by  plaintiff 

Practice,  how"  regulated  when  the  rules  of  the  United 
States  Supreme  Coiu-t  or  tlie  circuit  courts  do  not  apply 

Process,  issuing  and  return  of 

final  process  defined  .  

mesne  process  defined 

when  writ  of  assistance  to  issue 

provisions  as  to  same  in  cases  where  a  person 
not  a  party  to  a  cause  is 

served      

service  of  same 11-10 


y, 

14 

4 

15 

67 

201 

70 

204 

91 

59 

1 

14 

53 

144 

54 

78 

47 

179 

48 

77 

49 

77 

50 

77 

51 

78 

52 

144 

88 

347 

1 

14 

31 

371 

32 

143 

33 

176 

90 

14 

1 

14 

7 

106 

7 

106 

9 

371 

10 

370 

40 

106-107 

INDEX    TO    KQl'ITY    KULKS.  405 

Knl.  .  PaRe. 

Process,  by  wlioui  served,  :ui(l  eiilry  of  i)roof  of  .-ci  \  ice 

re(niired 1.",  107 

Pi'oc/fe/n  «H(/f.s,  provisions  as  to  the  siiine'  si  78 

Reference,  general  i)rovisions  as  to  reference  to  and  ino- 

ceedings  before  masters 7."-8ii   289-207 

to  master  of  any  decree  for  account  of  per- 
sonal estate  of  a  testator  or  intestate  .    .  7.'5  289 
when  reference  to  master  is  to  be  brought  on 

for  hearing 74  205 

before  master,  proceedings  on 7-5  205 

wliat  reports  of  master  on  reference  before 

him  shall  contain 7()  20.') 

power  of  master  on 77  20<J 

how  witnesses  may  be  comi)elled  to  api)ear 

before  master  or  examiner  and  testify  ...         78  206 

form  in   which   accounts  shall   be  produced 

before  master .  .  79  207 

what  papers  may  be  used  before  master  on   .        -80  207 

who  may  be  examined  by  master  on  .....   .         81  207 

Rehearing,  provisions  as  to  same  ...       88  347 

Replication,  no  special  replicatton  to  answer  to  be  tiled  .        4-5  176 

general  provisions  as  to G4  179 

Rei)ort  by  master  on  reference,  what  to  contain   ....         7G  205 
of  master  not  to  be  retained  as  security  for  com- 
pensation          82  207 

when  to  be  filed  and  time  of  filing 

exceptions  thereto,  etc 83  209 

provisions  to  prevent  the  filing  of  exceptions  to 

reports  for  frivolous  causes  or  delay 84  209 

Rules,  when  they  may  be  made  in  courts  of  equity     .   .  1  14 
provisions  as  to  making  of  rules  by  judges  of  cir- 
cuit courts      89            371 

Rule    1 14 

Rule    2 14 

Rule   3 14 

Rule   4 ].') 

Rule    5 lo 

Rule   6 K) 

Rule   7 litfi 

Rule   8 .wO 

Rule   9 :i7l 

Rulel.) 370 

Rule  11 UK) 

Rule  12 m> 


406  EQUITY    PLEADING. 

Page 

Enle  18 307 

Rule  U 107 

Rule  15 107 

Rule  IG 107 

Rule  17 140 

Rule  18 lo3 

Rule  19 133 

Rule  20 55 

Rule  21 55 

Rule  22 50 

Rule  23 58 

Rule  24 5!) 

Rule  25 142 

Rule  26 ' 142 

Rule  27 142,  17<5 

Rule  28 273 

Rule  29 273 

Rule  80- 274 

Rule  31 371 

Rule  82 143 

Rule  33 176 

Rule  34 177 

Rule  35 177 

Rule  36 145 

Rule  37 146 

Rule  38 146,  178 

Rule  39 143 

Rule  40 141 

Rule  41 145 

Rule  42 58 

Rule  43 56 

Rule  44 141 

Rule  45 '. 176 

Rule  46 141 

Rule  47       179 

Rule  48 77 

Rule  49 77 

Rule  50 77 

Rule  51 78 

Rule  52 144 

Rule  53 144 

Rule  54 78 

Rule  55 297 

Rule  56 275 

Rule  57 274 


INDEX    TO    KqllTY    RULES.  407 

Rule  58 -"o 

Rule  59 ; 1-14 

Rule  GO -"4 

RuleGl 1" 

Rule  (52 1" 

Rule  03 I"'^ 

Rule(U !"'• 

RuleBo  ...  * 1"" 

Rule  G() 1"'' 

Rule()7 -t'l 

Rule  68 -<^»4 

Rule  09 -04 

Rule  70  -04 

Rule  71 -03 

Rule  72 334 

Rule  73 289 

Rule  74 -05 

Rule  75 -05 

Rule  70 •        -05 

Rule  77 -00 

Rule  78 •    • -06 

Rule  79 207 

Rule  80 207 

Rule  81 207 

Rule  82 207 

Rule  83 209 

Rule  84 209 

Rule  85 290 

Rule  86 289 

Rule  87 '» 

Rule  88 f547 

Rule  89 <""! 

Rule  90 1-1 

Rule  91 -59 

Rule  92 280 

Rule  93 301 

Rule  94 50 

Rules,  Supreme  Court: 

Rule    3 372 

Rule    5 372 

Rule  12 ■•'•"> 

Rule  13 373 

Scaudul,  neiiPnil  provisions  as  to  cliiiiiiiation  of  scandal 

in  bills 20-27         •    142 

in  bills  not  permitted.     Will  le  struck  out  on 
exception 20  142 


408  *  EQUITY    PLEADING. 

Rule.         Page. 

Service,  provisions  as  to  service  of  process 11-16    106-107 

Stocklioldcrs,  bills  brout'lit  by  stockholders  in  corpora- 
tion against  the  corporation  and  other  parties,  how  ver- 
ified, and  wliat  allegations  must  be  contained  therein  .  94  56 

Subpoena,  provisions  respecting 7  106 

wlien  to  issue  ....          11  106 

Avho  to  issue  same,  when  it  may  be  issued,  and 

how  returnable 12  106 

general  provisions  as  to  same,  how  served  .   .  13  107 

when  and  how  issued 14  107 

by  whom  served,  proof  of  service  required      .  15  107 

l)roceedings  on  return  of,  served 16  107 

Supplemental  answers,  provisions  as  to  same 46  141 

bills,  when  granted,  and    provisions    re- 

s])ecting  same 57  274 

contents  of 58  275 

Testimony,  when  taken  by  commission 67  201 

orally 67  201 

time  for  various  parties  to  take  testimony 

where  evidence  is  to  be  taken  orally   ...  67  201 
liow  to  be  qaken  by  deposition  according  to 

act  of  Congress •  68  204 

general  provisions  as  to  time  of  taking  ...  69  204 

when  and  how  same  may  be  taken  de  hene  esse  70  204 

form  of  hist  interrogatory 71  20B 

Time  may  be  abridged  in  certain  cases 4  15 

when  subpffina  is  returnable 12  106 

for  appearance  of  defendant 17  140 

when  bill  may  be  taken  jjro  confesso  against  de- 
fendant        18  133 

for  entry  of  decree  when  bill  is  jj7-oco»/esso  .    ...  19  133 
provisions  relating  generally  to  time  in  which  bills 

may  be  amended,  etc 28-30    273-274 

for  filing  new  or  su{)plemental  answer 46  141 

to  have  case  set  down  for  argument  wlien  defend- 
ant by  answer  suggests  defective  bill  for  want  of 

parties 52  144 

when  suits  will  stand  revived  as  of  course   ...  56  275 

for  pleading  to  supplemental  bill 57  274 

filing  exceptions  to  answer  for  insufficiency  .   .  61  177 
paities  to  suits  to  take  testimony  when  evi- 
dence is  to  be  taken  orally 67  201 

general  provisions  respecting  time  of  taking  testi- 
mony         69  204 

for  filing  exceptions  to  report  of  master 83  209 


INDKX    TO    KQUITY    RUF-KS.  lOK 

Kule.  I'aijc. 

Verification,  bills  bnniglit   by  stockliolders  affainsl  tlic 
corporation  and  otlior  parties,  how  verified  and  wliat 

allegations  must  be  contained  therein ;t4  .'»«'» 

Witnesses,  how  examined  when  evidence  is  to  be  taken  ' 

orally  G7  201 

compelled  to  attend      .    .  ....  Cu  201 

when  and  how  some  may  be  examined 

de  bene  esse  70  2()4 

before  commissioner  or  master  or  examiner. 

how  compelled  to  ai)pear  and  testify 
when  same  may  be  examined  in  open  court 
Writ  of  assistance,  provisions  as  to  same  ... 
when  to  issue 
sequestration,  provisions  as  to  same 

when  tn  issue  .       . 


■,s 

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